G.R. No.

L-14160 June 30, 1960

PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
ANUNCIACION VDA. DE GOLEZ, defendant-appellee.

Assistant Solicitor General Antonio A. Torres and Solicitor Jorge R. Coquia for appellant.
Aniceto V. Zezobrado for appellee.

REYES, J. B. L., J.:

On October 2, 1957, the provincial fiscal of Negros Occidental filed an information in the Court of First Instance of that
province charging Anunciacion Vda. de Golez with the crime of homicide through reckless imprudence, as follows:

That on or about the period comprised from December 12, 1956 to December 24, 1956, in the municipality of
San Carlos, province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the
herein accused, without being duly licensed to practice medicine and with reckless negligence and without taking
due precaution, did, then and there, wilfully, unlawfully, and feloniosly diagnose, prescribe, and treat one Susana
Tam, who had been suffering for sometime with bodily ailment, knowing fully well that she is incompetent and
not possessing the necessary technical or scientific knowledge or skill, and as a consequence of such negligence
and carelessness and lack of medical skill, said Susana Tam died thereafter.

The accused pleaded not guilty to the information.

When the case was called for trial, the assistant fiscal made a manifestation that the accused had also been charged
with the crime of illegal practice of medicine before another sala of the same court. In view of this manifestation, the
trial court motu proprio dismissed the information for being fatally defective, without prejudice to the filing of the proper
information against the same accused. The grounds given for the dismissal were the following:

In view of the foregoing manifestation of the Fiscal, the Court finds that the information is fatally defective and,
therefore, should be dismissed under Par. (a), Sec. 2 of Rule 113 of the Rules of Court inasmuch as the facts
charged do not constitute the offense of homicide thru reckless imprudence because illegal practice of medicine
is malicious per se, and when the accused practiced medicine without academical preparation and without a
license to do so, then she is per se committing a criminal act for which the criminal intent is presumed. Although
the crime of homicide thru reckless imprudence can be committed by a duly licensed physician when in the
practice of his profession he fails to exercise due care and diligence from which the criminal act arises, this
crime cannot be imputed to a person who has no authority to practice this profession, which act is malicious per
se. The crime described in Article 365 of the Revised Penal Code results from the performance of a lawful act
which was done without exercising the care and diligence that is required by the circumstances, and not from
the performance of an unlawful act which is the subject of the information in this case because a quack doctor
who practices medicine does so against the law, and, therefore, his act is necessarily malicious and criminal.

From the above order, the provincial fiscal appealed to this Court, and, through the Solicitor General, urges that the
court below erred in dismissing the information for being fatally defective because the facts charged therein allegedly
do not constitute the crime of homicide thru reckless imprudence.

We agree with appellant that the order of dismissal is erroneous, in that the crime of illegal practice of medicine is a
statutory offense wherein criminal intent is taken for granted, so that a person may be convicted thereof irrespective of
his intention and in spite of his having acted in good faith and without malice; i.e., even if he was not motivated by an
evil desire to injure or hurt another, but by an honest desire to cure or alleviate the pain of a patient. In fact, as defined
by Section 2678 of the Revised Administrative Code (the law then in force), the offense consists in the mere act of
practicing medicine in violation of the Medical Law, even if no injury to another, much less death, results from such
malpractice. When, therefore, the patient dies, the illegal practitioner should be equally responsible for the death of his
patient, an offense independent of and distinct from the illegal practice of medicine.

The allegations in the information in this case that the accused acted with reckless negligence in diagnosing, prescribing
for, and treating the deceased Susana Tam, knowing that she did not possess the necessary technical knowledge or
skill to do so, thus causing her death, sufficiently charge the crime of homicide through reckless imprudence, since
ordinary diligence counsels one not to tamper with human life by trying to treat a sick man when he knows that he does
not have the special skill, knowledge, and competence to attempt such treatment and cure, and may consequently
reasonably foresee harm or injury to the latter, said accused was found guilty and convicted by this Court of physical
injuries through imprudence under the old Penal Code (U. S. vs. Feliciano Divino, 12 Phil., 175).

However, in view of the error of the lower court in dismissing the information, we cannot sustain this appeal for the
reason that it would place the accused in double jeopardy. The present information being valid and sufficient in form
and substance to sustain a conviction, the dismissal thereof by the court after the accused had pleaded not guilty to the
charge and without his consent constitutes jeopardy as to bar further proceedings upon the case (U. S vs. Yam Tung
Way, 21 Phil., 67; People vs. Hernandez, 94 Phil., 49; 49 Off. Gaz. No. 12, 5342; People vs. Ferrer, 100 Phil., 124; 55
Off. Gaz. [4] 620). The failure of the accused to file a brief and raise the question of double jeopardy in this appeal does
not mean that section 2, Rule 118, providing that the People can not appeal if the defendant would be placed in double
jeopardy would no longer apply (People vs. Bao, 106 Phil., 243; 56 Off. Gaz. [51] 7768).
The unfortunate result in this case could have been avoided if the trial court had proceeded more deliberately, without
allowing its judgment to be influenced by preconceived notions or undue haste in dispatching cases.

The appeal is, therefore, dismissed, with costs de oficio.

G.R. No. L-29745 June 4, 1973

MERCEDES M. TEAGUE, petitioner,

vs.
ELENA FERNANDEZ, et al., respondent.

Jose W. Diokno for petitioner.

Jose G. Gatchalian for respondents.

MAKALINTAL, J.:

The facts are stated in the decision of the Court of Appeals as follows:

The Realistic Institute, admittedly owned and operated by defendant-appellee Mercedes M. Teague was
a vocational school for hair and beauty culture situated on the second floor of the Gil-Armi Building, a
two-storey, semi-concrete edifice (Exhs. "C", "C-1" to "C-5" and "4") located at the corner of Quezon
Boulevard and Soler Street, Quiapo, Manila. The said second floor was unpartitioned, had a total area
of about 400 square meters, and although it had only one stairway, of about 1.50 meters in width, it
had eight windows, each of which was provided with two fire-escape ladders (Exh. "4"), and the presence
of each of said fire-exits was indicated on the wall (Exh. "5").

At about four o'clock in the afternoon of October 24, 1955, a fire broke out in a store for surplus materials
located about ten meters away from the institute. Soler Street lay between that store and the institute.
Upon seeing the fire, some of the students in the Realistic Institute shouted 'Fire! Fire!' and thereafter,
a panic ensued. Four instructresses and six assistant instructress of the Institute were present and they,
together with the registrar, tried to calm down the students, who numbered about 180 at the time,
telling them not to be afraid because the Gil-Armi Building would not get burned as it is made of
concrete, and that the fire was anyway, across the street. They told the students not to rush out but
just to go down the stairway two by two, or to use the fire-escapes. Mrs. Justitia Prieto, one of the
instructresses, took to the microphone so as to convey to the students the above admonitions more
effectively, and she even slapped three students in order to quiet them down. Miss Frino Meliton, the
registrar, whose desk was near the stairway, stood up and tried with outstretched arms to stop the
students from rushing and pushing their way to the stairs. The panic, however, could not be subdued
and the students, with the exception of the few who made use of fire-escapes kept on rushing and
pushing their way through the stairs, thereby causing stampede therein.

Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four students,
including Lourdes Fernandez, a sister of plaintiffs-appellants, were found dead and several others injured
on account of the stampede.

xxx xxx xxx

The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the upper lip, contused
abrasions in different parts of the body, internal hemorrhage and fractures in the second and third right ribs. The cause
of death, according to the autopsy report, was "Shock due to traumatic fractures of the ribs with perinephric hematoma
and lacerations of the conjunctiva of both eyes."

The deceased's five brothers and sisters filed an action for damages against Mercedes M. Teague as owner and operator
of Realistic Institute. The Court of First Instance of Manila found for the defendant and dismissed the case. The plaintiffs
thereupon appealed to the Court of Appeals, which by a divided vote of 3 to 2 (a special division of five members having
been constituted) rendered a judgment of reversal and sentenced the defendant to pay damages to the plaintiffs in the
sum of P11,000.00, plus interest at the legal rate from the date the complaint was filed.

The case came up to this Court on a petition for review filed by the defendant below.

The decision of the appellate court declared that the defendant, hereinafter to be referred to as the petitioner, was
negligent and that such negligence was the proximate cause of the death of Lourdes Fernandez. This finding of
negligence is based primarily on the fact that the provision of Section 491 Of the Revised Ordinances of the City of
Manila had not been complied with in connection with the construction and use of the Gil-Armi building where the
petitioner's vocational school was housed. This provision reads as follows:

Sec. 491. Firepro of partitions, exits and stairways. ... All buildings and separate sections of buildings
or buildings otherwise known as accessorias having less than three stories, having one or more persons
domiciled therein either temporarily or permanently, and all public or quasi-public buildings having less
than three stories, such as hospitals, sanitarium, schools, reformatories, places of human detention,
assembly halls, clubs, restaurants or panciterias, and the like, shall be provided with at least two
unobstructed stairways of not less than one meter and twenty centimeters in width and an inclination
of not less than forty degrees from the perpendicular, in case of large buildings more than two stairways
shall likewise be provided when required by the chief of the fire department, said stairways shall be
placed as far apart as possible.

The alleged violation of the ordinance above-quoted consisted in the fact that the second storey of the Gil-Armi building
had only one stairway, 1.5 meters wide, instead of two of at least 1.2 meters each, although at the time of the fire the
owner of the building had a second stairway under construction.
In ruling that such non-compliance with the City Ordinances was an act of negligence and that such negligence was the
proximate cause of the death of Lourdes Fernandez, reliance is based on a number of authorities in the American
jurisdiction, thus: .

The mere fact of violation of a statute is not sufficient basis for an inference that such violation was the
proximate cause of the injury complained. However, if the very injury has happened which was intended
to be prevented by the statute, it has been held that violation of the statute will be deemed to be
proximate cause of the injury. (65 C.J.S. 1156).

The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as a
matter or law, or, according to the decisions on the question, negligence per se for the reason that non-
observance of what the legislature has prescribed as a suitable precaution is failure to observe that care
which an ordinarily prudent man would observe, and, when the state regards certain acts as so liable to
injure others as to justify their absolute prohibition, doing the forbidden act is a breach of duty with
respect to those who may be injured thereby; or, as it has been otherwise expressed, when the standard
of care is fixed by law, failure to conform to such standard is negligence, negligence per se or negligence
in and of itself, in the absence of a legal excuse. According to this view it is immaterial, where a statute
has been violated, whether the act or omission constituting such violation would have been regarded as
negligence in the absence of any statute on the subject or whether there was, as a matter of fact, any
reason to anticipate that injury would result from such violation. .... (65 C.J.S. pp. 623-628).

But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding the
speed limit, for example, do not inquire whether his prohibited conduct was unreasonably dangerous.
It is enough that it was prohibited. Violation of an ordinance intended to promote safety is negligence.
If by creating the hazard which the ordinance was intended to avoid it brings about the harm which the
ordinance was intended to prevent, it is a legal cause of the harm. This comes only to saying that in
such circumstances the law has no reason to ignore the causal relation which obviously exists in fact.
The law has excellent reason to recognize it, since it is the very relation which the makers of the
ordinance anticipated. This court has applied these principles to speed limits and other regulations of
the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

... However, the fact that other happenings causing or contributing toward an injury intervened between
the violation of a statute or ordinance and the injury does not necessarily make the result so remote
that no action can be maintained. The test is to be found not in the number of intervening events or
agents, but in their character and in the natural and probable connection between the wrong done and
the injurious consequence. The general principle is that the violation of a statute or ordinance is not
rendered remote as the cause of an injury by the intervention of another agency if the occurrence of
the accident, in the manner in which it happened, was the very thing which the statute or ordinance
was intended to Prevent. (38 Am Jur 841).

The petitioner has raised a number of issues. The first is that Section 491 of the Revised Ordinances of the City of Manila
refers to public buildings and hence did not apply to the Gil-Armi building which was of private ownership. It will be
noted from the text of the ordinance, however, that it is not ownership which determines the character of buildings
subject to its requirements, but rather the use or the purpose for which a particular building is utilized. Thus the same
may be privately owned, but if it is devoted to any one of the purposes mentioned in the ordinance for instance as a
school, which the Realistic Institute precisely was then the building is within the coverage of the ordinance. Indeed
the requirement that such a building should have two (2) separate stairways instead of only one (1) has no relevance
or reasonable relation to the fact of ownership, but does have such relation to the use or purpose for which the building
is devoted.

It is next contended that the obligation to comply with the ordinance devolved upon the owners of the building and
therefore it is they and not the petitioner herein, who is a mere lessee, who should be liable for the violation. The
contention ignores the fact that it was the use of the building for school purposes which brought the same within the
coverage of the ordinance; and it was the petitioner and not the owners who was responsible for such use.

The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to comply with the requirement
of the ordinance was the proximate cause of the death of Lourdes Fernandez. The case of Villanueva Vda. de Bataclan,
et al. vs. Medina, G. R. No. L-10126, October 22, 1957, is cited in support of the contention that such failure was not
the proximate cause. It is there stated by this Court:

The proximate legal cause is that acting first and producing the injury, either immediately or by settling
other events in motion, all constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final event in the chain immediately affecting the
injury as a natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom.

Having in view the decision just quoted, the petitioner relates the chain of events that resulted in the death of Lourdes
Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3) shouts of "Fire!, Fire!"; (4) panic in
the Institute; (5) stampede; and (6) injuries and death.

As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and cannot be the basis
of liability since there intervened a number of independent causes which produced the injury complained of. A statement
of the doctrine relied upon is found in Manila Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court,
citing Corpus Juris said:
 A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more
than furnish the condition or give rise to the occasion by which the injury was made possible, if there
intervened between such prior or remote cause and the injury a distinct, successive unrelated, and
efficient cause of the injury, even though such injury would not have happened but for such condition
or occasion. If no danger existed in the condition except because of the independent cause, such
condition was not the proximate cause. And if an independent negligent act or defective condition sets
into operation the circumstances which result in injury because of the prior defective condition, such
subsequent act or condition is the proximate cause. (45 C.J. p. 931.)

According to the petitioner "the events of fire, panic and stampede were independent causes with no causal connection
at all with the violation of the ordinance." The weakness in the argument springs from a faulty juxtaposition of the
events which formed a chain and resulted in the injury. It is true that the petitioner's non-compliance with the ordinance
in question was ahead of and prior to the other events in point of time, in the sense that it was coetaneous with its
occupancy of the building. But the violation was a continuing one, since the ordinance was a measure of safety designed
to prevent a specific situation which would pose a danger to the occupants of the building. That situation was undue
overcrowding in case it should become necessary to evacuate the building, which, it could be reasonably foreseen, was
bound to happen under emergency conditions if there was only one stairway available. It is true that in this particular
case there would have been no overcrowding in the single stairway if there had not been a fire in the neighborhood
which caused the students to panic and rush headlong for the stairs in order to go down. But it was precisely such
contingencies or event that the authors of the ordinance had in mind, for under normal conditions one stairway would
be adequate for the occupants of the building. Thus, as stated in 38 American Jurisprudence, page 841: "The general
principle is that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention
of another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the
statute or ordinance was intended to prevent." To consider the violation of the ordinance as the proximate cause of the
injury does not portray the situation in its true perspective; it would be more accurate to say that the overcrowding at
the stairway was the proximate cause and that it was precisely what the ordinance intended to prevent by requiring
that there be two stairways instead of only one. Under the doctrine of the cases cited by the respondents, the principle
of proximate cause applies to such violation.

A procedural point mentioned by the petitioner is that the complaint did not specifically allege that the ordinance in
question had been violated. The violation, however, as an act of negligence which gave rise to liability, was sufficiently
comprehended within paragraph 7 of the complaint, which reads: .

Par. 7. That the death of Lourdes Fernandez was due to the gross negligence of the defendant who failed
to exercise due care and diligence for the safety of its students in not providing the building with
adequate fire exits and in not practicing fire drill exercises to avoid the stampede, aside from the fact
that the defendant did not have a permit to use the building as a school-house.

The decision appealed from is affirmed, with costs.

G.R. No. 86890 January 21, 1994

LEANDRO CARILLO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

Balane, Tamase, Alampay Law Office for petitioner.

The Solicitor General for the people.

FELICIANO, J.:

Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of the Decision of the Court of Appeals dated 28 November
1988, which affirmed his conviction by the Regional Trial Court of the crime of simple negligence resulting in homicide,
for the death of his thirteen (13) year old patient
Catherine Acosta. The trial court had sentenced him to suffer the penalty of arresto mayor in its medium period (four
[4] months' imprisonment), as well as to pay the heirs of his patient an indemnity of P30,000.00 for her death,
P10,000.00 as reimbursement for actual expenses incurred, P50,000.00 as moral damages and to pay the costs of the
suit. 1

The information filed against petitioner and his co-accused, the surgeon Dr. Emilio Madrid, alleged the following:

That on or about the 31st of May 1981, in the municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding with one another, without taking the necessary care and
precaution to avoid injury to person, did then and there willfully, unlawfully and feloniously operate, in
a reckless, careless and imprudent manner and neglected to exercise their respective medical knowhow
and tasks and/or departed from the recognized standard in their treatment, diagnosis of the condition,
and operation of the patient, one Catherine Acosta, 13 years old, which negligence caused the death of
the said Catherine Acosta. 2

Petitioner and Dr. Emilio Madrid entered pleas of not guilty at arraignment and the case proceeded to trail with Judge
Job B. Madayag presiding. 3

The prosecution presented as its principal evidence the testimony of four (4) witnesses, namely: 1) Yolanda Acosta,
Catherine's mother, who was able to observe the conduct of the accused outside the operating theater before, during
and after the appendectomy procedure carried out on her daughter; 4 2) Domingo Acosta, Catherine's father, who
corroborated some parts of his wife's
testimony; 5 3) Dr. Horacio Buendia, an expert witness who described before the trial court the relationship between a
surgeon and an anesthetist in the course of a surgical operation, as well as define the likelihood of cardiac arrest as a
post operative complication; 6 and 4) Dr. Nieto Salvador, an expert witness who analyzed and explained the significance
of the results of the pathological study and autopsy conducted on Catherine's body by one Dr. Alberto Reyes. 7

After the prosecution had rested its case, the defense was granted leave to file a demurrer to the evidence. 8 After failing
to file the demurrer within the reglementary period, Judge Manuel Yuzon, who had in the meantime taken over as
presiding judge of the sala where this case was pending, denied the defense motion for extension of time to file demurrer
and declared the case submitted for decision. 9

On 19 September 1985, the trial court promulgated its decision convicting both the accused of the crime charged. 10

On appeal, the Court of Appeals affirmed the judgment of conviction, and specified that the civil liability of the two (2)
accused was solidary in nature. 11

Petitioner Dr. Carillo alone filed the present Petition for Review with the Court, seeking reversal of his conviction, or in
the alternative, the grant of a new trial. Dr. Madrid did not try to appeal further the Court of Appeals Decision.
Accordingly, the judgment of conviction became final insofar as the accused surgeon Dr. Madrid is concerned.

The facts of the case as established by the Court of Appeals are as follows:

The deceased, Catherine Acosta, a 13 year old girl, daughter of spouses Domingo and Yolanda Acosta,
complained to her father at about 10:30 o'clock in the morning of May 31, 1981 of pains in the lower
part of her abdomen. Catherine was then brought to Dr. Elva Pea. Dra. Pea called for Dr. Emilio
Madrid and the latter examined Catherine Acosta. According to Dr. Madrid, his findings might be
appendicitis. Then Dr. Pea told Catherine's parents to bring the child to the hospital in Baclaran so that
the child will be observed.

At the Baclaran General Hospital, a nurse took blood sample form the child. The findings became known
at around 3:00 o'clock in the afternoon and the child was scheduled for operation at 5:00 o'clock in the
afternoon. The operation took place at 5:45 p.m. because Dr. Madrid arrived only at that time.

When brought inside the operating room, the child was feeling very well and they did not subject the
child to ECG (electrocardiogram) and
X-ray.

The appellant Dr. Emilio Madrid, a surgeon, operated on Catherine. He was assisted by appellant, Dr.
Leandro Carillo, an anesthesiologists.
During the operation, while Yolanda Acosta, Catherine's mother, was staying outside the operating
room, she "noticed something very unfamiliar." The three nurses who assisted in the operation were
going in and out of the operating room, they were not carrying anything, but in going out of the operating
room, they were already holding something.

Yolanda asked one of the nurses if she could enter the operating room but she was refused.

At around 6:30 p.m., Dr. Emilio Madrid went outside the operating room and Yolanda Acosta was allowed
to enter the first door.

The appendicitis (sic) was shown to them by Dr. Madrid, because, according to Dr. Madrid, they might
be wondering because he was going to install drainage near the operating (sic) portion of the child.

When asked, the doctor told them the child was already out of danger but the operation was not yet
finished.

It has also been established that the deceased was not weighed before the administration of anesthesia
on her.

The operation was finished at 7:00 o'clock in the evening and when the child was brought out from the
operating room, she was observed to be shivering (nanginginig); her heart beat was not normal; she
was asleep and did not wake up; she was pale; and as if she had difficulty in breathing and Dr. Emilio
Madrid suggested that she placed under oxygen tank; that oxygen was administered to the child when
she was already in the room.

Witness Yolanda Acosta further testified that shortly before the child was transferred from the operating
room to her room, she (witness) was requested by the anesthesiologist to go home and get a blanket.
A portion of Yolanda Acosta's testimony on what happened when she returned to the hospital are
reproduced hereunder as follows:

Q What happened afterward?

A When I arrived in the hospital, my child was being transferred to her

bed.

Q What else happened?

Q I noticed that the heartbeat of my daughter was not normal. And I

noticed that her hospital gown is rising up and down.

Q What transpired after that?

A I asked Dr. Madrid why it was like that, that the heartbeat of my
daughter is not normal.

Q And did the doctor make any reply?

A The doctor said because of the lesion of the child.

Q What else happened?

A After they have revived the heartbeat of the child, Dr. Carillo and
Dr.Madrid left.

Q Now do you remember what time was it when Dr. Carillo stepped out?

A Only a minute after they have transferred the child to the bed.

Q What happened later on after Dr. Carillo and Dr. Madrid stepped out
of the hospital?

A After 15 or 30 minutes has lapsed at about 7:15 or 7:30, the child

had developed convulsion and stiffening of the body.

Q When you observed convulsion and stiffening of the body, did you do
anything?

A We requested the nurse who was attending to her to call for a doctor.

Q And the nurse who was attending to the patient called for a doctor?

A They called for Dra. Pea, their family physician.

Q What transpired afterwards?

 A What Dra. Pea did was call for Dr. Madrid and the cardiologist.

Q Did this doctor arrived?

A Yes.

Q What transpired after the doctor arrived?

A They examined the child.

Q After they examined the child, did they inform you of the result of the
examination?

A The cardiologist was the one whom informed us after he stepped out
of the room when we followed him. The doctor told us that she suffered
severe infection which went up to her head.

Q After you were informed of the result of his examination, what

transpired next?

A According to them, they will do their best for the child and that they
will call for Dr. Carillo.

Q Did Dr. Carillo arrived?

A At around 10:30 in the evening.

Q Did Dr. Carillo do anything when he arrived on 31 May 1981?

A When he arrived, he noticed that there were two small bottles and big
bottles of dextrose which were hanging above the bed of the child. Then
he said, "What is this? Christmas tree or what?" He told us that one
bottle of dextrose be removed. And the big one will remain.

Q What happened after that?

A After that we talked to Dr. Carillo and asked him how did this happen
to the child.

Q What did Dr. Carillo reply (sic) to you?

A He answered "that is nothing, the child will regain consciousness and

if the child will not regain consciousness, I will resign (sic) as a
doctor." 12

(Emphasis supplied)

When Catherine remained unconscious until noontime the next day, a neurologist examined her and she was diagnosed
as comatose. 13 Three (3) days later, Catherine died without regaining consciousness. 14

The Court of Appeals held that Catherine had suffered from an overdose of, or an adverse reaction to, anesthesia,
particularly the arbitrary administration of Nubain, a pain killer, without benefit of prior weighing of the patient's body
mass, which weight determines the dosage of Nubain which can safely be given to a patient. 15 The Court of Appeals
held that this condition triggered off a heart attack as a post-operative complication, depriving Catherine's brain of
oxygen, leading to the brain's hemorrhage. 16 The Court of Appeals identified such cardiac arrest as the immediate
cause of Catherine's death. 17

The Court of Appeals found criminal negligence on the part of petitioner Dr. Carillo and his co-accused Dr. Madrid,
holding that both had failed to observe the required standard of diligence in the examination of Catherine prior to the
actual administration of anesthesia; 18 that it was "a bit rash" on the part of the accused Dr. Carillo "to have administered
Nubain without first weighing Catherine"; 19 and that it was an act of negligence on the part of both doctors when, (a)
they failed to monitor Catherine's heartbeat after the operation and
(b) they left the hospital immediately after reviving Catherine's heartbeat, depriving the latter
of immediate and expert medical assistance when she suffered a heart attack approximately fifteen (15) to thirty (30)
minutes later. 20

Since neither petitioner nor his co-accused presented evidence in their own behalf, the present Petition seeks to question
the soundness of the factual conclusions drawn by the Court of Appeals, upon which the affirmance of petitioner's
conviction was based.

Close examination of the instant Petition for Review shows that petitioner's main arguments are two-fold: (1) the Court
of Appeals "completely brushed aside" and "misapprehended" Catherine's death certificate and biopsy report which
allegedly showed that the cause of death was a ruptured appendix, which led to blood poisoning, 21 rather than faulty
anesthetic treatment;
and (2) there was no direct evidence of record showing that Nubain was administered to Catherine either during the
appendectomy procedure or after such operation. 22

Two (2) related issues are thus posed for the Court's consideration. The first is whether the Court of Appeals so
drastically "misapprehended" the relevant, operative facts in this case as to compel this Court to examine and resolve
question(s) of fact which would have a decisive significance for the disposition of the case. The rule is too firmly settled
to require much documentation that only questions of law may be raised before this Court in a petition for review
on certiorari, subject to certain well-known exceptions. 23 After careful scrutiny of petitioner's contentions before us and
the record of this case, we do not believe that petitioner has shown "misapprehension of facts" on the part of the Court
of Appeals which would require this Court to overturn the judgment reached by the former.

The second issue is whether or not the findings of fact of the Court of Appeals adequately support the conclusion that
petitioner Dr. Carillo was, along with Dr. Madrid, guilty of simple negligence which resulted in homicide. Our review of
the record leads us to an affirmative answer.

Petitioner contends that the Court of Appeals seriously erred in finding that an overdose of, or an allergic reaction to,
the anesthetic drug Nubain had led to the death of Catherine Acosta and that the true cause of Catherine's death was
that set out in the death certificate of Catherine: "Septicemia (or blood poisoning) due to perforated appendix with
peritonitis." 24 The concept of causation in general, and the cause of death in human beings in particular, are complex
and difficult notions. What is fairly clear is that death, understood as a physical condition involving cessation of vital
signs in the brain and heart, is preceded by a series of physiological events, any one of which events can, with equal
cogency, be described as a "cause of death". The Court of Appeals found that an overdose of, or an adverse reaction
to, Nubain, an anesthetic or pain-killing drug the appropriate dose of which depends on the body weight or mass of the
patient, had generated or triggered off cardiac arrest, which in turn led to lack of oxygen in Catherine's brain, which
then brought about hemorrhaging in the brain. Vital activity in the brain thereupon ceased. The medical evidence
presented at the trial was quite consistent with the findings of the Court of Appeals which concluded that cardiac arrest
was the cause of Catherine's death. 25

For his part, petitioner insists that cardiac arrest is not the only cause of oxygen-starvation of the brain, that septicemia
with peritonitis or severe infection which had "gone up to the head" of Catherine was an equally efficient cause of
deprivation of the brain of oxygen and hence of brain hemorrhage. The medical testimony of the expert witnesses for
the prosecution on which petitioner relies is also consistent with petitioner's theory that septicemia with peritonitis was,
or at least could have been, the cause of Catherine's death. 26

Indeed, it appears to the Court that there was no medical proof submitted to the trial court to show that one or the
other "cause" was necessarily an exclusive cause of death in the case of Catherine Acosta; that an overdose or allergic
reaction to Nubain could not have combined with septicemia and peritonitis in bringing about Catherine's death.

What is of critical importance for present purposes is not so much the identification of the "true cause" or "real cause"
of Catherine's death but rather the set of circumstances which both the trial court and the Court of Appeals found
constituted simple (as distinguished from reckless) negligence on the part of the two accused Dr. Madrid and Dr. Carillo
leading to the death of Catherine.

When the patient was wheeled out of the operating room after completion of surgery, she manifested signs of medical
instability (i.e., shivering, paleness, irregular breathing and weak heart beat). 27 She was not brought to a properly
equipped recovery room, or intensive care until which the hospital lacked. 28 Such facilities and their professional staffs,
of which an anesthetist is commonly a part, are essential for providing close observation and patient care while a post-
surgery patient is recovering from the effects of anesthesia and while the normal protective mechanisms are still dull or
obtunded. 29 Instead, the patient was merely brought to her assigned hospital bed and was provided oxygen on the
instructions of Dr. Madrid then "revived" her heartbeat. 30 Both doctors then left their patient and the hospital;
approximately fifteen minutes later, she suffered convulsions and cardiac arrest. 31

The conduct of Dr. Madrid and of the petitioner constituted inadequate care of their patient in view of her vulnerable
condition. Both doctors failed to appreciate the serious condition of their patient whose adverse physical signs were
quite manifest right after surgery. And after reviving her heartbeat, both doctors failed to monitor their patient closely
or extend further medical care to her; such conduct was especially necessary in view of the inadequate,
post-operative facilities of the hospital. We do not, of course, seek to hold petitioner responsible for the inadequate
facilities of the Baclaran General Hospital. We consider, however, that the inadequate nature of those facilities did
impose a somewhat higher standard of professional diligence upon the accused surgeon and anesthetist personally than
would have been called for in a modern fully-equipped hospital.

While Dr. Madrid and a cardiologist were containing the patient's convulsions, and after the latter had diagnosed that
infection had reached the patient's head, these two (2) apparently after consultation, decided to call-in the
petitioner. 32 There is here a strong implication that the patient's post-operative condition must have been considered
by the two (2) doctors as in some way related to the anesthetic treatment she had received from the petitioner either
during or after the surgical procedure.

Once summoned, petitioner anesthesiologist could not be readily found. When he finally appeared at 10:30 in the
evening, he was evidently in a bad temper, commenting critically on the dextrose bottles before ordering their
removal. 33 This circumstance indicated he was not disposed to attend to this unexpected call, in violation of the canons
of his profession that as a physician, he should serve the interest of his patient "with the greatest of solicitude, giving
them always his best talent and skill." 34 Indeed, when petitioner finally saw his patient, he offered the unprofessional
bluster to the parents of Catherine that he would resign if the patient will not regain consciousness. 35 The canons of
medical ethics require a physician to "attend to his patients faithfully and conscientiously." He should secure for them
all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physician's
failure to fulfill his obligation to his patient is, in most cases, his own conscience, violation of this rule on his part is
"discreditable and inexcusable". 36
Nubain was an experimental drug for anesthesia and post-operative pain and the medical literature required that a
patient be weighed first before it is administered and warned that there was no (or inadequate) experience relating to
the administration thereof to a patient less that eighteen (18) ears of age. 37 Yet, the doctor's order sheet (Exhibit "C")
did not contain this precaution but instead directed a reader to apply the drug only when warranted by the
circumstances. 38 During the offer of Exhibit "C" by the prosecution, Dr. Madrid admitted that this prescription, which
was unsigned, was made in his own handwriting. 39 It must be observed that the instruction was open-ended in that
some other individual still had to determine if circumstances existed warranting administration of the drug to the patient.
The document thus indicated the abdication of medical responsibility on an extremely critical matter.
Since petitioner anesthesiologist entered subsequent prescriptions or orders in the same order sheet, which were signed
by him, at 7:15 p.m. on the same evening of 31 May 1981, he was in a position to appreciate the dangers inherent in
the prior prescription, which was within his (petitioner's) area of specialization, and to order measures to correct this
anomaly and protect his patient's well-being. So far as the condition of the evidence shows, he failed to do so. In sum,
only a low level of diligence was exhibited by petitioner and Dr. Madrid in the prescription of medication for their patient.

As noted earlier, petitioner relied heavily in this proceeding on the testimony on cross-examination of the expert
witnesses for the prosecution to show that blood poisoning resulting from a ruptured appendix could also be responsible
for the patient's death.

No suggestion has been made that the rupture of the patient's occurred prior to surgery. After her blood sample was
examined, the patient was merely diagnosed as a case of appendicitis, without further elaboration. 40 No intensive
preoperative preparations, like the immediate administration of antibiotics, was thereafter undertaken on the patient.
This is a standard procedure for patients who are, after being diagnosed, suspected of suffering from a perforated
appendix and consequent peritonitis. 41 The mother also testified that petitioner anesthesiologist merely injected a drug,
"pre-anesthesia" intended to put the patient to sleep, into the container of fluids being administered to her daughter
intravenously at her room, prior to surgery. 42 We note further that the surgeon Dr. Madrid was forty-five minutes late
in arriving at the operating theater. 43 Considering that delay in treatment of appendicitis increases the morbidity of the
patient, 44 Dr. Madrid's conduct can only be explained by a pre-operative diagnosis on his part that the condition of
appendicitis was not yet attended by complications (i.e., a ruptured appendix and peritonitis).

The above circumstances do strongly indicate that the rupture of the patient's appendix occurred during the
appendectomy procedure, that is, at a time and place the operating room where the two (2) accused were in full
control of the situation and could determine decisively what needed to be done in respect of the patient. 45 This
circumstance must be considered in conjunction with other related circumstances which the prosecution had proven:
that the patient was ambulatory when brought to the operating room; 46 that she left the operating room two (2) hours
later in obviously serious condition; and that an appendectomy accompanied or followed by sustained antibiotic
treatment is a fairly common and generally accepted medical procedure for dealing with ruptured appendix and
peritonitis, 47 a fact of which judicial note may be taken.

As early as in People v. Vistan, 48 the Court defined simple negligence, penalized under what is now Article 365 of the
Revised Penal Code, as "a mere lack of prevision in a situation where either the threatened harm is
not immediate or the danger not openly visible." Put in a slightly different way, the gravamen of the offense of simple
negligence is the failure to exercise the diligence necessitated or called for the situation which was not immediately
life-destructive but which culminated, in the present case, in the death of a human being three (3) days later. Such
failure to exercise the necessary degree of care and diligence is a negative ingredient of the offense charged. The rule
in such cases is that while the prosecution must prove the negative ingredient of the offense, it needs only to present
the best evidence procurable under the circumstances, in order to shift the burden of disproving or countering the proof
of the negative ingredient to the accused, provided that such initial evidence establishes at least on a prima facie basis
the guilt of the accused. 49 This rule is particularly applicable where the negative ingredient of the offense is of such a
nature or character as, under the circumstances, to be specially within the knowledge or control of the accused. 50 In
the instant case, the Court is bound to observe that the events which occurred during the surgical procedure (including
whether or not Nubain had in fact been administered as an anesthesia immediately before or during the surgery) were
peculiarly within the knowledge and control of Dr. Carillo and Dr. Madrid. It was, therefore, incumbent upon the two (2)
accused to overturn the prima facie case which the prosecution had established, by reciting the measures which they
had actually taken to prevent or to counter the obviously serious condition of Catherine Acosta which was evident right
after surgery. This they failed or refused to do so.

Still another circumstance of which account must be taken is that both petitioner and Dr. Madrid failed to inform the
parents of their minor patient of the nature of her illness, or to explain to them either during the surgery
(if feasible) or at any time after the surgery, the events which comprised the dramatic deterioration of her condition
immediately after surgery as compared with her pre-surgery condition. To give a truthful explanation to the parents
was a duty imposed upon them by the canons of their profession. 51 Petitioner should have explained to Catherine's
parents the actual circumstances surrounding Catherine's death, how, in other words, a simple appendectomy procedure
upon an ambulatory patient could have led to such fatal consequences.

By way of resume, in the case at bar, we consider that the chain of circumstances above noted, namely: (1) the failure
of petitioner and Dr. Madrid to appreciate the serious post-surgery condition of their patient and to monitor her condition
and provide close patient care to her; (2) the summons of petitioner by Dr. Madrid and the cardiologist after the patient's
heart attack on the very evening that the surgery was completed; (3) the low level of care and diligence exhibited by
petitioner in failing to correct Dr. Madrid's prescription of Nubain for post-operative pain; (4) the extraordinary failure
or refusal of petitioner and Dr. Madrid to inform the parents of Catherine Acosta of her true condition after surgery, in
disregard of the requirements of the Code of Medical Ethics; and (5) the failure of petitioner and Dr. Madrid to prove
that they had in fact exercised the necessary and appropriate degree of care and diligence to prevent the sudden decline
in the condition of Catherine Acosta and her death three (3) days later, leads the Court to the conclusion, with moral
certainty, that petitioner and Dr. Madrid were guilty of simple negligence resulting in homicide.

In addition to the main arguments raised by petitioner earlier, he also raised an ancillary, constitutional claim of denial
of due process. He contends that he was deprived of his right to have competent representation at trial, and to have
his cause adequately heard, because his counsel of record, Atty. Jose B. Puerto, was "incompetent" and exhibited "gross
negligence" by manifesting an intent to file a demurrer to the evidence, in failing to present evidence in his behalf and
in omitting to file a defense memorandum for the benefit of Judge Yuzon, after the latter took over the case at the end
of trial and before the Judge rendered his decision. 52Petitioner submits he is entitled to a new trial. 53

These contentions do not persuade. An examination of the record indicates that Atty. Puerto represented petitioner
during trial with reasonable competence. Except for the two hearing sessions when witnesses Domingo Acosta was
cross-examined and recross-examined by Atty. Puerto, petitioner was present during all the sessions when the other
prosecution witnesses were presented and during which Atty. Puerto extensively cross-examined them in behalf of
petitioner and Dr. Madrid. This counsel elicited from the two (2) expert witnesses for the prosecution testimony favorable
to petitioner and which was relied upon by the latter in this proceeding. 54 The record further indicates that if petitioner
indeed entertained substantial doubts about the capability of Atty. Puerto, he could have easily terminated the services
of that counsel and retained a new one, or sought from the trial court the appointment of counsel
de oficio, during the ample opportunity given from the time Atty. Puerto manifested his intent to file a demurrer on 16
October 1985, to the submission of the case for decision on 25 June 1986 and before the promulgation of judgment on
19 September 1986. 55 During all this time, petitioner could have obtained leave of court to present evidence in his
behalf in lieu of a demurrer, or to submit a memorandum for the defense. After promulgation of the judgment of
conviction, petitioner did not seek a new trial, but permitted Atty. Puerto to obtain leave from the trial court to continue
on bail during the pendency of the proceedings before the Court of Appeals. 56 Indeed, petitioner replaced
Atty. Puerto as counsel only upon institution of the present petition. 57

Petitioner's constitutional objection is plainly an afterthought.

WHEREFORE, the Decision of the Court of Appeals dated 28 November 1988 is hereby AFFIRMED, subject only to the
modification that the indemnity for the death of Catherine Acosta is hereby increased to P50,000.00, in line with current
jurisprudence. 58 SO ORDERED.
G.R. No. 118231 July 5, 1996

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,

vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust,
men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already provided:
"If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the
eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand." 2 Subsequently,
Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow that method of treatment which
according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious
and mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the
art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present,
the primary objective of the medical profession if the preservation of life and maintenance of the health of the people. 4

Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he
must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the
ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil
Case No. 9492.

The facts, as found by the trial court, are as follows:

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head
of the Department of Obstetrics and Gynecology at the said Hospital.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private
patient sometime before September 21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who
was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student
nurses performed a simple caesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital
and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that morning.
Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of
confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked
out of the Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's secretary, the
amount of P1,500.00 as "professional fee". . . .

Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines. . . which she had been taking up to December, 1988.

In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . .
certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week of
November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental.

The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly
losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January
20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either
a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of
Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed
that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those examinations
impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed.

When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an
ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus,
and a piece of rubber material on the right side of the uterus embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body"
looked like a piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could have
been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body
was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs.
Villegas after her delivery on September 21, 1988. 7

The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and
although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination, 8 it was not mentioned
in the pathologist's Surgical Pathology Report. 9
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a Progress
Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14 The trial court,
however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons
who prepared them are deceased or unable to testify on the facts therein stated. . . . Except for the Medical Certificate
(Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed
her signature on some of them to express her agreement thereto. . . ." 15 The trial court also refused to give weight to
Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge"
thereof, 16 as could be gleaned from her statement, thus:

A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes
with the tissues but unluckily I don't know where the rubber was. 17

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of
rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." 18 This statement, the trial court
noted, was never denied nor disputed by Dr. Kho, leading it to conclude:

There are now two different versions on the whereabouts of that offending "rubber" (1) that it was
sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as
told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only
to weaken their claim against Defendant Batiquin. 19

All told, the trial court held in favor of the petitioners herein.

The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents'
documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found
near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding:

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial
court itself had narrated what happened to appellant Flotilde after the caesarean operation made by
appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy. Appellant
Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen.
Both appellant; testified that after the operation made by appellee doctor, they did not go to any other
doctor until they finally decided to see another doctor in January, 1989 when she was not getting any
better under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin admitted on the witness stand
that she alone decided when to close the operating area; that she examined the portion she operated
on before closing the same. . . Had she exercised due diligence, appellee Dr. Batiquin would have found
the rubber and removed it before closing the operating area. 20

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A)
plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G
and G-2)] for the second operation that saved her life.

For the miseries appellants endured for more than three (3) months, due to the negligence of appellee
Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in
the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed
by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the
direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the
rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy and caused
appellant fear, worry and anxiety. . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET
ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants
the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages;
P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of
litigation. SO ORDERED. 21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed grave
abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its
discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with
contradictions and falsities.

The private respondents commented that the petition raised only questions of fact, which were not proper for review by
this Court.

While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions,
among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision
is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. 22

After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's
testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho's
testimony:

Q What is the purpose of the examination?

 A Just in case, I was just thinking at the back of my mind, just in case this would turn
out to be a medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know where the rubber wa
s. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied)

The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of
the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial court
should have likewise considered the other portions of Dr. Kho's testimony, especially the following:

Q So you did actually conduct the operation on her?

A Yes, I did.

Q And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen,
there was an ovarian cyst on the left and side and there was also an ovarian cyst on the
right which, on opening up or freeing it up from the uterus, turned out to be pus. Both
ovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back of the
uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found
a [piece of] rubber on the right
side. 24

We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw
a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City
for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of a piece of
rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on
other than first-hand knowledge for, as she asserted before the trial court:

Q But you are sure you have seen [the piece of rubber]?

A Oh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim
on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was
a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence,
the same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's
statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even
if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu
City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's
abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and
disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness is found to
have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated testimony
be rejected, but such portions thereof deemed worthy of belief may be credited. 29

It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber
drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after the operation nor
blood smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed out that the absence of a
rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent
Villegas. 32But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative
testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the
petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned
error.

While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the said
testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her
turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her
trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of care
with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting
our appraisal of Dr. Kho's trustworthiness:

This is not to say that she was less than honest when she testified about her findings, but it can also be
said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an
eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to
have anticipated. 35

Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was
indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation
of this doctrine:

This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in the ordinary course of things
does not happen in those who have the management use proper care, it affords reasonable evidence,
 in the absence of an explanation by the defendant, that the accident arose from want of care." Or
as Black's Law Dictionary puts it:

Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference that
defendant was negligent, which arises upon proof that [the] instrumentality causing
injury was in defendant's exclusive control, and that the accident was one which ordinary
does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence
whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact
that [the] accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence of negligence
it would not have occurred and that thing which caused injury is shown to have been
under [the] management and control of [the] alleged wrongdoer. . . . Under [this]
doctrine
. . . the happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of defendant, and that
the occurrence [sic] was such that in the ordinary course of things would not happen if
reasonable care had been used.

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine is
not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular
case, is not intended to and does not dispense with the requirement of proof of culpable
negligence on the party charged. It merely determines and regulates what shall
be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach
of the duty of due care. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available. 36

In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of
direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent
Villegas's body, which, needless to say, does not occur unless through the intersection of negligence. Second, since
aside from the caesarean section, private respondent Villegas underwent no other operation which could have caused
the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product
of the caesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption
of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently
leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse effects thereof.

As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the
people, 37 and the State's compelling interest to enact measures to protect the public from "the potentially deadly
effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or
trauma." 38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them
always his best talent and skill." 39 Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas,
in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for professionals,
in general, 40 and members of the medical profession, 41 in particular. WHEREFORE, the challenged decision of 11 May
1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against the petitioners. SO
ORDERED.
 [G.R. No. 118141. September 5, 1997]

LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAUL R. ARNAU, ABELARDO L.

APORTADERA JR., Honorable CONDRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS F.
GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the City
Prosecutor, Manila, respondents.

DECISION

ROMERO, J.:

May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated
in Ocampo v. Ombudsman [1] which states:

In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the
discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense
charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance or if he
otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in
his view, it is in due and proper form.

Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after surgery
under circumstances which indicate that the attending surgeon and anaesthesiologist may have been guilty of negligence
but upon their being charged, a series of nine prosecutors toss the responsibility of conducting a preliminary
investigation to each other with contradictory recommendations, ping-pong style, perhaps the distraught widow is not
to be blamed if she finally decides to accuse the City Prosecutors at the end of the line for partiality under the Anti-Graft
and Corrupt Practices Act. Nor may she be entirely faulted for finally filing a petition before this Court against the
Ombudsman for grave abuse of discretion in dismissing her complaint against said City Prosecutors on the ground of
lack of evidence. Much as we sympathize with the bereaved widow, however, this Court is of the opinion that the general
rule still finds application in instant case. In other words, the respondent Ombudsman did not commit grave abuse of
discretion in deciding against filing the necessary information against public respondents of the Office of the City
Prosecutor.

The following facts are borne out by the records.

Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST hospital
for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while
Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of
complications of unknown cause, according to officials of the UST Hospital.[2]

Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to
conduct an autopsy on her husbands body. Consequently, the NBI ruled that Florencios death was due to lack of care
by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr.
Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before the
Office of the City Prosecutor.

During the preliminary investigation, what transpired was a confounding series of events which we shall try to
disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because he was
related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who
was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and jurisprudence regarding
preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma, who issued a resolution
recommending that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio be dismissed.

The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the interest of
justice and peace of mind of the parties, recommended that the case be re-raffled on the ground that Prosecutor Carisma
was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a volte
faceoccurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead, a
corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the
findings of Prosecutor Dimagiba.

Pending the resolution of petitioners motion for reconsideration regarding Prosecutor Dimagibas resolution, the
investigative pingpong continued when the case was again assigned to another prosecutor, Eudoxia T. Gualberto, who
recommended that Dr. Reyes be included in the criminal information of Homicide through Reckless Imprudence.While
the recommendation of Prosecutor Gualberto was pending, the case was transferred to Senior State Prosecutor Gregorio
A. Arizala, who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both City
Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 3019 [3] against
Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the Office of the
Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing the complaint for
lack of evidence.

In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the recommendations
of the government prosecutors and to approve and disapprove the same. Petitioner faults the Ombudsman for, allegedly
in grave abuse of discretion, refusing to find that there exists probable cause to hold public respondent City Prosecutors
liable for violation of Section 3(e) of R.A. No. 3019.

Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the following:
investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain information, and
function to adopt, institute and implement preventive measures. [4]
 As protector of the people, the Office of the Ombudsman has the power, function and duty to act promptly on
complaints filed in any form or manner against public officials and to investigate any act or omission of any public official
when such act or omission appears to be illegal, unjust, improper or inefficient. [5]

While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this Court
is not precluded from reviewing the Ombudsmans action when there is an abuse of discretion, in which case Rule 65 of
the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the 1987 Constitution. [6]

In this regard, grave abuse of discretion has been defined as where a power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual
refusal to perform a duty enjoined by, or in contemplation of law. [7]

From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to another were
not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating authority with respect to
misfeasance, non-feasance and malfeasance of public officials, the Ombudsman should have been more vigilant and
assiduous in determining the reasons behind the buckpassing to ensure that no irregularity took place.

Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One would
have expected the Ombudsman, however, to inquire into what could hardly qualify as standard operating procedure,
given the surrounding circumstances of the case.

While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to discover
who may be charged with a crime, its function is merely to determine the existence of probable cause. [8] Probable
cause has been defined as the existence of such fact and circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecution, that the person charged was guilty of the crime for which
he was prosecuted.[9]

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of
facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so. The term does not mean actual and positive cause nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge.[10]

In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed negligence
on the part of the attending physicians in administering the anaesthesia. [11] The fact of want of competence or diligence
is evidentiary in nature, the veracity of which can best be passed upon after a full-blown trial for it is virtually impossible
to ascertain the merits of a medical negligence case without extensive investigation, research, evaluation and
consultations with medical experts. Clearly, the City Prosecutors are not in a competent position to pass judgment on
such a technical matter, especially when there are conflicting evidence and findings. The bases of a partys accusation
and defenses are better ventilated at the trial proper than at the preliminary investigation.

A word on medical malpractice or negligence cases.

In its simplest terms, 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.[12]

Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.

Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship
was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training
and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and
skill in the treatment of their patients.[13] They have a duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these
professional duties of skill and care, or their improper performance, by a physician surgeon whereby the patient is
injured in body or in health, constitutes actionable malpractice. [14] Consequently, in the event that any injury results to
the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for
negligence.[15]

Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert
testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in actions against
anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive or improper
anaesthesia.[16] Essentially, it requires two-pronged evidence: evidence as to the recognized standards of the medical
community in the particular kind of case, and a showing that the physician in question negligently departed from this
standard in his treatment.[17]

Another element in medical negligence cases is causation which is divided into two inquiries: whether the doctors
actions in fact caused the harm to the patient and whether these were the proximate cause of the patients
injury.[18] Indeed here, a causal connection is discernible from the occurrence of the victims death after the negligent
act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrant the filing of the
appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced
that the attending surgeons did not conduct the necessary interview of the patient prior to the operation. It appears
that the cause of the death of the victim could have been averted had the proper drug been applied to cope with the
symptoms of malignant hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to
counteract whatever deleterious effect the anaesthesia might produce. [19] Why these precautionary measures were
disregarded must be sufficiently explained.
 The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act which
requires the following facts:

1. The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy
with them;

2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public
position;

3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and

4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit,
advantage or preference to such parties. [20]

Why did the complainant, petitioner in instant case, elect to charge respondents under the above law?

While a party who feels himself aggrieved is at liberty to choose the appropriate weapon from the armory, it is with
no little surprise that this Court views the choice made by the complainant widow.

To our mind, the better and more logical remedy under the circumstances would have been to appeal the resolution
of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the Department of Justices
Order No. 223, [21] otherwise known as the 1993 Revised Rules on Appeals From Resolutions In Preliminary
Investigations/Reinvestigations, as amended by Department Order No. 359, Section 1 of which provides:

Section 1. What May Be Appealed. - Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial
or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as
otherwise provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: The Secretary of
Justice may reverse, affirm or modify the appealed resolution. On the other hand, He may motu proprio or on motion
of the appellee, dismiss outright the appeal on specified grounds. [22]

In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in
dismissing the complaint against the Prosecutors and this Court will not interfere with the same.

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of an
appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the respondent
City Prosecutors. No costs. SO ORDERED.
 [G.R. No. 122445. November 18, 1997]

DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA UMALI, respondents.

DECISION

FRANCISCO, J.:

"Doctors are protected by a special law. They are not guarantors of care. They do not even warrant a good result. They
are not insurers against mishap or unusual consequences. Furthermore they are not liable for honest mistake of
judgment"[1]

The present case against petitioner is in the nature of a medical malpractice suit, which in simplest term is the type
of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has
cause bodily harm.[2] In this jurisdiction, however, such claims are most often brought as a civil action for damages
under Article 2176 of the Civil Code,[3] and in some instances, as a criminal case under Article 365 of the Revised Penal
Code[4] with which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of
the deceased sought redress for the petitioner's alleged imprudence and negligence in treating the deceased thereby
causing her death. The petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation
of the deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide" in an information
which reads:

"That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this
Honorable Court, the accused abovenamed, being then the attending anaesthesiologist and surgeon, respectively, did
then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or store
sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a
surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such
failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of said Lydia Umali
on the day following said surgical operation."[5]

Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On
March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the dispositive portion
of which is hereunder quoted as follows:

"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the offense charged for insufficiency of evidence
while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March 24, 1991,
and therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby sentenced to suffer the penalty of 2
months and 1 day imprisonment of arresto mayor with costs."[6]

The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of the
MTCC[7] prompting the petitioner to file a petition for review with the Court of Appeals but to no avail. Hence this petition
for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24, 1995 affirming
petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali P50,000.00 as
indemnity for her death.[8]

In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the
crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is supported by the
evidence on record.

First the antecedent facts.

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual
Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital
at around 4:30 in the afternoon of the same day.[9] Prior to March 22, 1991, Lydia was examined by the petitioner who
found a "myoma"[10] in her uterus, and scheduled her for a hysterectomy operation on March 23, 1991. [11] Rowena and
her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next day at 1:00
o'clock in the afternoon.[12] According to Rowena, she noticed that the clinic was untidy and the window and the floor
were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with. [13] Because of the
untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the operation. [14] The following day,
before her mother was wheeled into the operating room, Rowena asked the petitioner if the operation could be
postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that
the petitioner told her that she must be operated on as scheduled.[15]

Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room
while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and instructed
them to buy tagamet ampules which Rowena's sister immediately bought. About one hour had passed when Dr. Ercillo
came out again this time to ask them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood
Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner
informed them that the operation was finished. The operating staff then went inside the petitioner's clinic to take their
snacks. Some thirty minutes after, Lydia was brought out of the operating room in a stretcher and the petitioner asked
Rowena and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with
petitioner's order as there was no more type "A" blood available in the blood bank. Thereafter, a person arrived to
donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was attached to an oxygen
tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's husband together with the driver of
the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as
soon as it arrived.[16] But at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50.
Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected to a
respirator and further examined.[17] The transfer to the San Pablo City District Hospital was without the prior consent of
Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived
to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then boarded a tricycle and followed the
ambulance.[18]

Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner
and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision. [19] The attending
physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San Pablo
District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure
was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to help save
the patient.[20] While petitioner was closing the abdominal wall, the patient died.[21] Thus, on March 24, 1991, at 3:00
o'clock in the morning, Lydia Umali was pronounced dead. Her death certificate states "shock" as the immediate cause
of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause.[22]

In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she
was indeed negligent in the performance of the operation:

"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might
happen during the operation. The manner and the fact that the patient was brought to the San Pablo District Hospital
for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation.
There was no showing that before the operation, accused Dr. Cruz had conducted a cardio pulmonary clearance or any
typing of the blood of the patient. It was (sic) said in medical parlance that the "abdomen of the person is a temple of
surprises" because you do not know the whole thing the moment it was open (sic) and surgeon must be prepared for
any eventuality thereof. The patient (sic) chart which is a public document was not presented because it is only there
that we could determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1" that the
sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed
with the surgery. The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra.
Ninevetch Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and for lack
of skill, the reason why the patient was brought for operation at the San Pablo City District Hospital. As such, the
surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence
to indicate that she should be held jointly liable with Dra. Cruz who actually did the operation." [23]

The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency,
negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after
the operation."[24] And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar observations,
thus:

"x x x. While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it
nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary
condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the
OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to testify.
This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged
"unverified statement of the prosecution witness" remains unchallenged and unrebutted.

Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the patient's
relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they were also asked
to buy type "A" blood for the patient; that after the surgery, they were again asked to procure more type "A" blood, but
such was not anymore available from the source; that the oxygen given to the patient was empty; and that the son-in-
law of the patient, together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the
much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen circumstances
before going into the first surgery, which was not emergency in nature, but was elective or pre-scheduled; she had no
ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply.

Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or
at least a clearance by an internist, which are standard requirements before a patient is subjected to surgery. Did the
petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding
time and clotting time? There is no showing that these were done. The petitioner just appears to have been in a hurry
to perform the operation, even as the family wanted the postponement to April 6, 1991. Obviously, she did not prepare
the patient; neither did she get the family's consent to the operation. Moreover, she did not prepare a medical chart
with instructions for the patient's care. If she did all these, proof thereof should have been offered. But there is none.
Indeed, these are overwhelming evidence of recklessness and imprudence."[25]

This court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of
conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless
imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is
voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that
there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place.

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to
be determined according to the standard of care observed by other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state
of medical science.[26] In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al.,[27] this Court stated that
in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment
and care falls below such standard.[28] Further, inasmuch as the causes of the injuries involved in malpractice actions
are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.[29]
 Immediately apparent from a review of the records of this case is the absence of any expert testimony on the
matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The
prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau
of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the
matter of the standard of care that petitioner should have exercised.

All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions
such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the
operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to
the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the
circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of
the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen,
including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has
exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of
expert opinion.[30] The deference of courts to the expert opinion of qualified physicians stems from its realization that
the latter possess unusual technical skills which laymen in most instances are incapable of intelligently
evaluating.[31] Expert testimony should have been offered to prove that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of care employed by other physicians in good standing when
performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in
the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs
the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. [32] This
presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the
failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital
and the reoperation performed on her by the petitioner do indicate, even without expert testimony, that petitioner was
recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances
caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that the injury to the person
or property was a consequence of the reckless imprudence.

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and
for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as
a casual connection of such breach and the resulting death of his patient.[33] In Chan Lugay v. St Luke's Hospital,
Inc.,[34] where the attending physician was absolved of liability for the death of the complainant's wife and newborn
baby, this court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the 'injury for which recovery is
sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury
must be a direct and natural sequence of events, unbroken by intervening efficient causes.' In other words, the
negligence must be the proximate cause of the injury. For, 'negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of.' And 'the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.'''[35] (Underscoring supplied.)

Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:

"Atty. Cachero:

Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a
signature above the typewritten name Floresto Arizala, Jr., whose signature is that?

A. That is my signature, sir.

Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?

A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings,
sir.

Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area,
anterior abdominal area, midline, will you please explain that in your own language?

A. There was incision wound (sic) the area just below the navel, sir.

Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring
7.5 x 5.5 x 5.0 cm, with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely
pale myometrium with areas of streak induration. The ovaries and adnexal structures are missing with
the raw surfaces patched with clotted blood. Surgical sutures were noted on the operative site.

Intestines and mesenteries are pale with blood clots noted between the mesentric folds.

Hemoperitonium: 300 s.s.,

right paracolic gutter,

50 c.c., left paracolic gutter

200 c.c., mesentric area,

100 c.c., right pelvic gutter

stomach empty.

Other visceral organs, pale.',

will you please explain that on (sic) your own language or in ordinary

A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present
and also sign of previous surgical operation and there were (sic) clotted blood, sir.
 Q. How about the ovaries and adnexal structures?

A. They are missing, sir.

Q. You mean to say there are no ovaries?

A. During that time there are no ovaries, sir.

Q. And there were likewise sign of surgical sutures?

A. Yes, sir.

Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric
folds, will you please explain on (sic) this?

A. In the peritoneal cavity, they are mostly perritonial blood.

Q. And what could have caused this blood?

A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a result of the injuries
which destroyed the integrity of the vessel allowing blood to sip (sic) out, sir.

Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the court the cause of death?

A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock.

Q. Can you tell the us what could have caused this hemorrhagic shock?

A. Well hemorrhagic shock is the result of blood loss.

Q. What could have the effect of that loss of blood?

A. Unattended hemorrhage, sir.[36] (Underscoring supplied.)

The foregoing was corroborated by Dr. Nieto Salvador:

"Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted
by Dr. Arizala?

A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir.

Q. Have you examined the post mortem of Dr. Arizala?

A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.

Q. What could have caused the death of the victim?

A. This pathologic examination are (sic) compatible with the person who died, sir.

Q. Will you explain to us the meaning of hemorrhagic compatible?

A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the
victim before she died there was shock of diminish of blood of the circulation. She died most probably
before the actual complete blood loss, sir.

Court: Is it possible doctor that the loss of the blood was due on (sic) operation?

A. Based on my pathology findings, sir.

Q. What could have caused this loss of blood?

A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on
operation and this cause (sic) bleeding, or may be set in the course of the operation, or may be (sic) he
died after the operation. Of course there are other cause (sic).

Atty. Cachero:

Q. Especially so doctor when there was no blood replacement?

A. Yes, sir."[37] (Underscoring supplied.)

The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as
likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be
caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:

"Atty. Pascual:

Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of
operation when one losses (sic) control of the presence, is that correct? During the operation there is lost
(sic) of control of the cut vessel?

A. Yes, sir.

Q. Or there is a failure to ligate a vessel of considerable size?

A. Yes, sir.

Q. Or even if the vessel were ligated the knot may have slipped later on?

A. Yes, sir.

Q. And you also mentioned that it may be possible also to some clotting defect, is that correct?

A. May be (sic)."[38] (Underscoring supplied).

 Defense witness, Dr. Bu C. Castro also gave the following expert opinion:

"Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes
of such hemorrage (sic)?

A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir,
which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir.

COURT:

What do you think of the cause of the bleeding, the cutting or the operations done in the body?

A. Not related to this one, the bleeding here is not related to any cutting or operation that I (sic) have done.

Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding
in a patient by an operations (sic)?

A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic)
become (sic) loose, it is (sic) becomes loose if proven.

xxxxxxxxx

Q. If the person who performed an autopsy does not find any untight (sic) clot (sic) blood vessel or any suture
that become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject?

A. Definitely, sir."[39] (Underscoring supplied.)

According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon
to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the subsequent loosening of
the tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as DIC. It is significant to state at
this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured cut
blood vessel nor was there any indication that the tie or suture of a cut blood vessel had become loose thereby causing
the hemorrhage.[40] Hence the following pertinent portion of Dr. Arizala's testimony:

"Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature

A: Ligature, sir.

Q: We will explain that later on. Did you recall if the cut structures were tied by first suturing it and then tying
a knot or the tie was merely placed around the cut structure and tied?

A: I cannot recall, sir.

Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to examine, is that correct?

A: Well, I bothered enough to know that they were sutured, sir.

Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied
neither were you able to determine whether any loose suture was found in the peritoneal cavity?

A: I could not recall any loose sutured (sic), sir."[41]

On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage
and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency and when massive
DIC occurs as a complication of surgery leaving raw surface, major hemorrhage occurs.[42] And as testified to by defense
witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone, anytime." [43] He
testified further:

"Q. Now, under the circumstance one of the possibility as you mentioned in (sic) DIC?

A. Yes, sir.

Q. And you mentioned that it cannot be prevented?

A. Yes, sir.

Q. Can you even predict if it really happen (sic)?

A. Possible, sir.

Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things
as DIC?

A. Well, I did reserve because of the condition of the patient.

Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart,
the operated (sic) records, the post mortem findings on the histophanic (sic) examination based on your
examination of record, doctor, can you more or less says (sic) what part are (sic) concerned could have
been the caused (sic) of death of this Lydia Umali?

A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular
Coagulation or the DIC which resulted to hemorrhage or bleedings, sir.

Q. Doctor based on your findings then there is knowing (sic) the doctor would say whether the doctor her (sic)
has been (sic) fault?

ATTY. MALVEDA:

We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record.

ATTY. PASCUAL:

Precisely based on this examination.

 ATTY. MALVEDA:

Not finding, there was no finding made.

COURT:

He is only reading the record.

ATTY. PASCUAL:

Yes, sir.

A. No, sir, there is no fault on the part of the surgeon, sir." [44]

This court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense witnesses
that substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC which, as attested
to by an expert witness, cannot be attributed to the petitioner's fault or negligence. The probability that Lydia's death
was caused by DIC was unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as to
the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting in homicide. While we condole
with the family of Lydia Umali, our hands are bound by the dictates of justice and fair dealing which hold inviolable the
right of an accused to be presumed innocent until proven guilty beyond reasonable doubt. Nevertheless, this Court finds
the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a crime requires proof beyond reasonable
doubt, only a preponderance of evidence is required to establish civil liability.[45]

The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court
was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the
petitioner carried out her duties. A precious life has been lost and the circumstances leading thereto exacerbated the
grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to the present time [46] and
this Court is aware that no amount of compassion and commiseration nor words of bereavement can suffice to assuage
the sorrow felt for the loss of a loved one. Certainly, the award of moral and exemplary damages in favor of the heirs
of Lydia Umali are proper in the instant case.

WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime of reckless
imprudence resulting in homicide but is ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY
THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages,
and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.

Let the copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.
SO ORDERED.
 [G.R. No. 130547. October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES,
represented by their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY HOSPITAL,
SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO, respondents.

DECISION

MENDOZA, J.:

This is a petition for review of the decision[1] of the Court of Appeals in CA-G.R. CV No. 36551 affirming the decision
of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners against
respondents.

The facts are as follows:

Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja,
Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8, 1987,
Jorge had been suffering from a recurring fever with chills. After he failed to get relief from some home medication he
was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor.

On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent
Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took
his medical history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent,
and with respiratory distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15
to 20 cases of typhoid per month.[3] Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal
Test, a standard test for typhoid fever, to be performed on Jorge. Blood count, routine urinalysis, stool examination,
and malarial smear were also made.[4] After about an hour, the medical technician submitted the results of the test from
which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico
indorsed Jorge to respondent Dr. Marvie Blanes.

Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history and gave him a
physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted
treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on
Jorge. Said test was administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she did
not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams
of said antibiotic to be administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three
hours later just before midnight.

At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to 41C. The patient also
experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under
oxygen, used a suction machine, and administered hydrocortisone, temporarily easing the patients convulsions.When
he regained consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered
from chest pains in the past. Jorge replied he did not.[5] After about 15 minutes, however, Jorge again started to vomit,
showed restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency measures taken before and,
in addition, valium was administered. Jorge, however, did not respond to the treatment and slipped into cyanosis, a
bluish or purplish discoloration of the skin or mucous membrane due to deficient oxygenation of the blood. At around
2:00 a.m., Jorge died. He was forty years old. The cause of his death was Ventricular Arrythemia Secondary to
Hyperpyrexia and typhoid fever.

On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint [6]for damages against
respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On
September 24, 1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as additional
defendant and to drop the name of Josephine Pagente as defendant since she was no longer connected with respondent
hospital. Their principal contention was that Jorge did not die of typhoid fever. [7] Instead, his death was due to the
wrongful administration of chloromycetin. They contended that had respondent doctors exercised due care and
diligence, they would not have recommended and rushed the performance of the Widal Test, hastily concluded that
Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting sufficient tests on the
patients compatibility with said drug. They charged respondent clinic and its directress, Sister Rose Palacio, with
negligence in failing to provide adequate facilities and in hiring negligent doctors and nurses.[8]

Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the
following: (1) whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence, and
lack of skill or foresight on the part of defendants; (2) whether respondent Mercy Community Clinic was negligent in
the hiring of its employees; and (3) whether either party was entitled to damages. The case was then heard by the trial
court during which, in addition to the testimonies of the parties, the testimonies of doctors as expert witnesses were
presented.

Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training
Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to determine
the cause of his death. However, he did not open the skull to examine the brain. His findings[9] showed that the gastro-
intestinal tract was normal and without any ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge
did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid fever within five days from the
onset of the disease.

For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a
diplomate in internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the
Cebu City Medical Center and an associate professor of medicine at the South Western University College of Medicine in
Cebu City. He had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patients history and
positive Widal Test results ratio of 1:320would make him suspect that the patient had typhoid fever. As to Dr. Vacalares
observation regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr. Gotiong said that such hyperplasia
in the intestines of a typhoid victim may be microscopic. He noted that since the toxic effect of typhoid fever may lead
to meningitis, Dr. Vacalares autopsy should have included an examination of the brain.[10]

The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of
the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate professor
of the Cebu Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City.Dr.
Panopio stated that although he was partial to the use of the culture test for its greater reliability in the diagnosis of
typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges case was
already the maximum by which a conclusion of typhoid fever may be made. No additional information may be deduced
from a higher dilution.[11] He said that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive.

On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence
and dismissing petitioners action for damages. The trial court likewise dismissed respondents counterclaim, holding
that, in seeking damages from respondents, petitioners were impelled by the honest belief that Jorges death was due
to the latters negligence.

Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the decision
of the trial court.

Hence this petition.

Petitioners raise the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE
DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.

II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN UNFOUNDED
ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.

III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD OF
CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO
DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of
a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by
the profession generally, under similar conditions, and in like surrounding circumstances. [12] In order to successfully
pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably
prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or
surgeon would not have done, and that the failure or action caused injury to the patient. [13] There are thus four elements
involved in medical negligence cases, namely: duty, breach, injury, and proximate causation.

In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors
and Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the same circumstances. It is breach of this duty which
constitutes actionable malpractice.[14] As to this aspect of medical malpractice, the determination of the reasonable level
of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to causation.[15]

Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As
held in Ramos v. Court of Appeals:[16]

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree
of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where
the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred
to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred
but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between
the particular act or omission complained of and the injury sustained while under the custody and management of the
defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa
loquitor is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain
redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the
area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while
a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the
influence of anesthetic, during or following an operation for appendicitis, among others.[17]
 Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because
Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant
when he went to the hospital. Yet, he died after only ten hours from the time of his admission.

This contention was rejected by the appellate court.

Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the
accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency
which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not
have been due to any voluntary action or contribution of the person injured.[18]

The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question
was whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient
scheduled for cholecystectomy.[19] In that case, the patient was given anesthesia prior to her operation. Noting that the
patient was neurologically sound at the time of her operation, the Court applied the doctrine of res ipsa loquitur as
mental brain damage does not normally occur in a gallblader operation in the absence of negligence of the
anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that even an ordinary person
could tell if it was administered properly, we allowed the testimony of a witness who was not an expert. In this case,
while it is true that the patient died just a few hours after professional medical assistance was rendered, there is really
nothing unusual or extraordinary about his death. Prior to his admission, the patient already had recurring fevers and
chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that he had
been suffering from a serious illness and professional medical help came too late for him.

Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify
application of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the
standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no
presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between
the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that
the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the
merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why
any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result.[20]

Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligence allegedly committed by
respondent doctors.

Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorges
illness as typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin;[21] and (2) Dr.
Marvie Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three
hours after the first was given.[22] Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the
Northern Mindanao Training Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr.
Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock
undetermined, which could be due to allergic reaction or chloromycetin overdose. We are not persuaded.

First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he
is not a specialist on infectious diseases like typhoid fever.Furthermore, although he may have had extensive experience
in performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted
the postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only about three cases of typhoid
fever. Thus, he testified that:[23]

ATTY. PASCUAL:

Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever?

A In autopsy. But, that was when I was a resident physician yet.

Q But you have not performed an autopsy of a patient who died of typhoid fever?

A I have not seen one.

Q And you testified that you have never seen a patient who died of typhoid fever within five days?

A I have not seen one.

Q How many typhoid fever cases had you seen while you were in the general practice of medicine?

A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that. And
the widal test does not specify the time of the typhoid fever.

Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases now
you practice?

A I had only seen three cases.

Q And that was way back in 1964?

A Way back after my training in UP.

 Q Clinically?

A Way back before my training.

He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in
discarding his testimony, which is really inadmissible.

In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen
deprivation after the patient had bronchospasms[24]triggered by her allergic response to a drug,[25] and not due to faulty
intubation by the anesthesiologist. As the issue was whether the intubation was properly performed by an
anesthesiologist, we rejected the opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist
who could enlighten the court about anesthesia practice, procedure, and their complications; nor (2) an allergologist
who could properly advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could explain
the pharmacologic and toxic effects of the drug allegedly responsible for the bronchospasms.

Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They
vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is
infectious diseases and microbiology and an associate professor at the Southwestern University College of Medicine and
the Gullas College of Medicine, testified that he has already treated over a thousand cases of typhoid fever. [26] According
to him, when a case of typhoid fever is suspected, the Widal test is normally used,[27] and if the 1:320 results of the
Widal test on Jorge Reyes had been presented to him along with the patients history, his impression would also be that
the patient was suffering from typhoid fever.[28] As to the treatment of the disease, he stated that chloromycetin was
the drug of choice.[29] He also explained that despite the measures taken by respondent doctors and the intravenous
administration of two doses of chloromycetin, complications of the disease could not be discounted. His testimony is as
follows:[30]

ATTY. PASCUAL:

Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given?

A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever.

Q And presently what are the treatments commonly used?

A Drug of choice of chloramphenical.

Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the
patient associated with chills, temperature - 41oC, what could possibly come to your mind?

A Well, when it is change in the clinical finding, you have to think of complication.

Q And what will you consider on the complication of typhoid?

A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins
produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities;
then you can consider a toxic meningitis and other complications and perforations and bleeding in the ilium.

Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous,
after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient
developed chills . . . rise in temperature to 41oC, and then about 40 minutes later the temperature rose to
100oF, cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with seizures: what
significance could you attach to these clinical changes?

A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high
cardiac rate.

Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20
minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance
would you attach to this development?

A We are probably dealing with typhoid to meningitis.

Q In such case, Doctor, what finding if any could you expect on the post-mortem examination?

A No, the finding would be more on the meninges or covering of the brain.

Q And in order to see those changes would it require opening the skull?

A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was normal, Dr. Rico
explained that, while hyperplasia[31] in the payers patches or layers of the small intestines is present in typhoid fever,
the same may not always be grossly visible and a microscope was needed to see the texture of the cells. [32]

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and American
Board of Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the MetroCebu Community
Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical
pathologist, he recognized that the Widal test is used for typhoid patients, although he did not encourage its use because
a single test would only give a presumption necessitating that the test be repeated, becoming more conclusive at the
second and third weeks of the disease.[33] He corroborated Dr. Gotiongs testimony that the danger with typhoid fever
is really the possible complications which could develop like perforation, hemorrhage, as well as liver and cerebral
complications.[34] As regardsthe 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio stated that no additional
information could be obtained from a higher ratio.[35] He also agreed with Dr. Gotiong that hyperplasia in the payers
patches may be microscopic.[36]
 Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from
the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily
good physicians.[37] Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as
she in fact observed the due care required under the circumstances. Though the Widal test is not conclusive, it remains
a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing was
rendered unobtainable by the early death of the patient. The results of the Widal test and the patients history of fever
with chills for five days, taken with the fact that typhoid fever was then prevalent as indicated by the fact that the clinic
had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon any doctor of reasonable skill the
impression that Jorge Reyes had typhoid fever.

Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for
typhoid fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the
petitioners. As they failed to present expert opinion on this, preponderant evidence to support their contention is clearly
absent.

Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in
ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three
hours. Petitioners claim that Jorge Reyes died of anaphylactic shock [38] or possibly from overdose as the second dose
should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the Court
of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al.,
in Harrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is
the drug of choice for typhoid fever and that no drug has yet proven better in promoting a favorable clinical response.
Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infections,
bacteriodes infections, etc. (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five
hundred milligrams (500 mg.) at around nine oclock in the evening and the second dose at around 11:30 the same
night was still within medically acceptable limits, sincethe recommended dose of chloromycetin is one (1) gram every
six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics and
Toxicology, 1996). The intravenous route is likewise correct. (Mansser, ONick, Pharmacology and Therapeutics) Even if
the test was not administered by the physician-on-duty, the evidence introduced that it was Dra. Blanes who interpreted
the results remain uncontroverted. (Decision, pp. 16-17) Once more, this Court rejects any claim of professional
negligence in this regard.

....

As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test
of which, however, it has been observed: Skin testing with haptenic drugs is generally not reliable. Certain drugs cause
nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation of mast
cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic
sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What all this means
legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the
negligence of the appellee-physicians for all that the law requires of them is that they perform the standard tests and
perform standard procedures. The law cannot require them to predict every possible reaction to all drugs
administered. The onus probandi was on the appellants to establish, before the trial court, that the appellee-physicians
ignored standard medical procedure, prescribed and administered medication with recklessness and exhibited an
absence of the competence and skills expected of general practitioners similarly situated.[39]

Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common
carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the duty
of observing extraordinary diligence in the vigilance over the goods and for the safety of the passengers, [40]physicians
and surgeons should have the same duty toward their patients. [41] They also contend that the Court of Appeals erred
when it allegedly assumed that the level of medical practice is lower in Iligan City, thereby reducing the standard of
care and degree of diligence required from physicians and surgeons in Iligan City.

The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them,
according to the circumstances of each case. . . .
 The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years
of education, training, and by first obtaining a license from the state through professional board examinations. Such
license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of
doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors
have imposed upon themselves in recognition and acceptance of their great responsibility to society. Given these
safeguards, there is no need to expressly require of doctors the observance of extraordinary diligence. As it is now, the
practice of medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the
standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. That is
reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable skill and competence . . . that a
physician in the same or similar locality . . . should apply.

WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED. SO ORDERED.
 [G.R. No. 137268. March 26, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUTIQUIA CARMEN @ Mother Perpetuala,
CELEDONIA FABIE @ Isabel Fabie, DELIA SIBONGA @ Deding Sibonga, ALEXANDER SIBONGA @
Nonoy Sibonga, and REYNARIO NUEZ @ Rey Nuez, accused-appellants.

DECISION

MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 14, Cebu City, finding accused-appellants
Eutiquia Carmen @ Mother Perpetuala, Celedonia Fabie @ Isabel Fabie, Delia Sibonga @ Deding Sibonga, Alexander
Sibonga @ Nonoy Sibonga, and Reynario Nuez @ Rey Nuez guilty of murder and sentencing them to suffer the penalty
of reclusion perpetua and to pay the heirs of the victim the amount of P50,000.00 as indemnity as well as the costs.

The information[2] against accused-appellants alleged:

That on or about the 27th day of January, 1997 at about 2:00 oclock p.m., in the City of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping
one another, with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there
inflict fatal physical injuries on one Randy Luntayao which injuries caused the death of the said Randy Luntayao.

Accused-appellants pleaded not guilty to the charge, whereupon they were tried.

The prosecution presented evidence showing the following: At around 2 oclock in the afternoon of January 27,
1997, Honey Fe Abella, 10, and her friend Frances Claire Rivera, 7, were playing takyan in front of the house of one
Bebing Lastimoso in Quiot, Pardo, Cebu City, when suddenly they heard a child shout, Tabang ma! (Help mother!). The
cry came from the direction of the house of accused-appellant Carmen, who is also known in their neighborhood as
Mother Perpetuala. The two children ran towards Mother Perpetualas house.[3] What Honey Fe saw on which she testified
in court, is summarized in the decision of the trial court, to wit:

While there[,] she saw a boy, whose name . . . she [later] came to know as one Randy Luntayao, . . . being immersed
head first in a drum of water. Accused Alexander Sibonga was holding the waist of the body while accused Reynario
Nuez held the hands of the boy at the back. Accused Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie were pushing
down the boys head into the water. She heard the boy shouting Ma, help for two times. Later, she saw accused Reynario
or Rey Nuez tie the boy on the bench with a green rope as big as her little finger. . . . After that Eutiquia Carmen poured
[water from] a plastic container (galon) . . . into the mouth of the boy. Each time the boy struggled to raise his head,
accused Alexander Sibonga banged the boys head against the bench [to] which the boy was tied down. She even heard
the banging sound everytime the boys head hit the bench. For about five times she heard it. According to this witness
after forcing the boy to drink water, Eutiquia Carmen and accused Celedonia Fabie alias Isabel Fabie took turns in
pounding the boys chest with their clenched fists. All the time Rey Nuez held down the boys feet to the bench. She also
witnessed . . . Celedonia Fabie dropped her weight, buttocks first, on the body of the boy. Later on, Eutiquia Carmen
ordered Delia or Deding Sibonga to get a knife from the kitchen. Eutiquia Carmen then slowly plunged the stainless
knife on the left side of the boys body and with the use of a plastic gallon container, the top portion of which was cut
out, Eutiquia Carmen [caught] the blood dripping from the left side of the boys body. Honey Fe heard the moaning
coming from the tortured boy. Much later she saw Nonoy or Alexander Sibonga, Reynario Nuez, Delia Sibonga, Celedonia
Fabie, and Eutiquia Carmen carry the boy into the house.[4]

Eddie Luntayao, father of the victim, testified that he has five children, the eldest of whom, Randy, was 13 years
old at the time of the incident. On November 20, 1996, Randy had a nervous breakdown which Eddie thought was due
to Randy having to skip meals whenever he took the boy with him to the farm. According to Eddie, his son started
talking to himself and laughing. On January 26, 1997, upon the suggestion of accused-appellant Reynario Nuez, Eddie
and his wife Perlita and their three children (Randy, Jesrel, 7, and Lesyl, 1) went with accused-appellant Nuez to
Cebu. They arrived in Cebu at around 1 oclock in the afternoon of the same day and spent the night in Nuezs house in
Tangke, Talisay.

The following day, they went to the house of accused-appellant Carmen in Quiot, Pardo,[5] where all of the accused-
appellants were present. Eddie talked to accused-appellant Carmen regarding his sons condition. He was told that the
boy was possessed by a bad spirit, which accused-appellant Carmen said she could exorcise. She warned, however,
that as the spirit might transfer to Eddie, it was best to conduct the healing prayer without him. Accused-appellants
then led Randy out of the house, while Eddie and his wife and two daughters were locked inside a room in the house.[6]

After a while, Eddie heard his son twice shout Ma, tabang! (Mother, help!). Eddie tried to go out of the room to find
out what was happening to his son, but the door was locked. After about an hour, the Luntayaos were transferred to
the prayer room which was located near the main door of the house.[7]

A few hours later, at around 5 oclock in the afternoon, accused-appellants carried Randy into the prayer room and
placed him on the altar. Eddie was shocked by what he saw. Randys face was bluish and contused, while his tongue
was sticking out of his mouth. It was clear to Eddie that his son was already dead. He wanted to see his sons body, but
he was stopped from doing so by accused-appellant Eutiquia Carmen who told him not to go near his son because the
latter would be resurrected at 7 oclock that evening.[8]

After 7 oclock that evening, accused-appellant Carmen asked a member of her group to call the funeral parlor and
bring a coffin as the child was already dead. It was arranged that the body would be transferred to the house of accused-
appellant Nuez. Thus, that night, the Luntayao family, accompanied by accused-appellant Nuez, took Randys body to
Nunezs house in Tangke, Talisay. The following day, January 28, 1997, accused-appellant Nuez told Eddie to go with
him to the Talisay Municipal Health Office to report Randys death and told him to keep quiet or they might not be able
to get the necessary papers for his sons burial. Nuez took care of securing the death certificate which Eddie signed.[9]
 At around 3 oclock in the afternoon of January 28, 1997, accused-appellant Carmen went to Tangke, Talisay to
ensure that the body was buried. Eddie and his wife told her that they preferred to bring their sons body with them to
Sikatuna, Isabela, Negros Occidental but they were told by accused-appellant Carmen that this was not possible as she
and the other accused-appellants might be arrested. That same afternoon, Randy Luntayao was buried in Tangke,
Talisay.[10]

After Eddie and his family had returned home to Negros Occidental, Eddie sought assistance from the Bombo Radyo
station in Bacolod City which referred him to the regional office of the National Bureau of Investigation (NBI) in the
city. On February 3, 1997, Eddie filed a complaint for murder against accused-appellant Nuez and the other members
of his group.[11] He also asked for the exhumation and autopsy of the remains of his son. [12] As the incident took place
in Cebu, his complaint was referred to the NBI office in Cebu City.

Modesto Cajita, head of NBI, Region VII (Cebu), took over the investigation of the case. He testified that he met
with Eddie Luntayao and supervised the exhumation and autopsy of the body of Randy Luntayao. [13] Cajita testified that
he also met with accused-appellant Carmen and after admitting that she and the other accused-appellants conducted a
pray-over healing session on the victim on January 27, 1997, accused-appellant Carmen refused to give any further
statement. Cajita noticed a wooden bench in the kitchen of Carmens house, which, with Carmens permission, he took
with him to the NBI office for examination. Cajita admitted he did not know the results of the examination.[14]

Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted the autopsy on Randy Luntayao, testified that
he, the victims father, and some NBI agents, exhumed the victims body on February 20, 1997 at Tangke Catholic
Cemetery in the Tangke, Talisay, Cebu. He conducted the autopsy on the same day and later submitted the following
report (Exhs. E and F):[15]

FINDINGS

Body in advanced stage of decomposition wearing a white shirt and shorts wrapped in printed blanket (white and orange)
placed in white wooden coffin and buried underground about 4 feet deep.

Contusion, 3.0 x 4.0 cms. chest, anterior, left side.

Fracture, 3rd rib, left, mid-clavicular line.

Fracture, linear, occipital bone right side extending to the bases of middle cranial fossae right to left down to the occipital
bone, left side.

Fracture, diastatic, lamboidal suture, bilateral.

Internal organs in advanced stage of decomposition.

Cranial vault almost empty.

CAUSE OF DEATH: [The victim] could have died due to the internal effects of a traumatic head injury and/or
traumatic chest injury.

Dr. Mendez testified that the contusion on the victims chest was caused by contact with a hard blunt instrument. He
added that the fracture on the rib was complete while that found on the base of the skull followed a serrated or uneven
pattern. He said that the latter injury could have been caused by the forcible contact of that part of the body with a
blunt object such as a wooden bench.[16]

On cross-examination, Dr. Mendez admitted that he did not find any stab wound on the victims body but explained
that this could be due to the fact that at the time the body was exhumed and examined, it was already in an advanced
state of decomposition rendering such wound, if present, unrecognizable.[17]

Accused-appellants did not testify. Instead, the defense presented: (a) Ritsel Blase, an alleged eyewitness to the
incident; (b) Maria Lilina Jimenez, Visitacion Seniega, and Josefina Abing, alleged former patients of accused-appellant
Carmen; (c) Dr. Milagros Carloto, the municipal health officer of Talisay, Cebu and; (d) Atty. Salvador Solima of the
Cebu City Prosecutors Office.

Ritsel Blase, 21, testified that since 1987 she had been with the group of accused-appellant Carmen, whom she
calls Mother Perpetuala. She recounted that at around 2 oclock in the afternoon of January 27, 1997, while she was in
the house of accused-appellant Carmen, she saw Eddie Luntayao talking with the latter regarding the treatment of his
son. The boy was later led to the kitchen and given a bath prior to treatment. After water was poured on the boy, he
became unruly prompting accused-appellant Carmen to decide not to continue with the treatment, but the boys parents
allegedly prevailed upon her to continue. As the boy continued to resist, accused-appellant Carmen told accused-
appellants Delia Sibonga and Celedonia Fabie to help her (Carmen) lay the boy on a bench. As the child resisted all the
more, Eddie Luntayao allegedly told the group to tie the boy to the bench. Accused-appellant Delia Sibonga got hold of
a nylon rope which was used to tie the child to the bench. Then Carmen, Delia Sibonga, and Fabie prayed over the child,
but as the latter started hitting his head against the bench, Carmen asked Nuez to place his hands under the boys head
to cushion the impact of the blow everytime the child brought down his head. To stop the boy from struggling, accused-
appellant Fabie held the boys legs, while accused-appellant Nuez held his shoulders. After praying over the boy, the
latter was released and carried inside the house. Accused-appellant Alexander Sibonga, who had arrived, helped carry
the boy inside. After this, Blase said she no longer knew what happened inside the house as she stayed outside to finish
the laundry.[18]

Blase testified that the parents of Randy Luntayao witnessed the pray-over of their son from beginning to end. She
denied that accused-appellants Fabie and Delia Sibonga struck the victim on his chest with their fists. According to her,
neither did accused-appellant Carmen stab the boy. She claimed that Randy was still alive when he was taken inside
the house.[19]
 The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega, 39, and Josefina Abing, 39, who testified that
accused-appellant Carmen had cured them of their illnesses by merely praying over them and without applying any
form of physical violence on them.[20]

Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was also presented by the defense to testify on the
death certificate she issued in which she indicated that Randy Luntayao died of pneumonia. According to her, Eddie
Luntayao came to her office on January 28, 1997 to ask for the issuance of a death certificate for his son Randy Luntayao
who had allegedly suffered from cough and fever.[21]

On cross-examination, Dr. Carloto admitted that she never saw the body of the victim as she merely relied on what
she had been told by Eddie Luntayao. She said that it was a midwife, Mrs. Revina Laviosa, who examined the victims
body.[22]

The last witness for the defense, Assistant City Prosecutor Salvador Solima, was presented to identify the resolution
he had prepared (Exh. 8)[23] on the re-investigation of the case in which he recommended the dismissal of the charge
against accused-appellants. His testimony was dispensed with, however, as the prosecution stipulated on the matters
Solima was going to testify with the qualification that Solimas recommendation was disapproved by City Prosecutor
Primo Miro.[24]

The prosecution recalled Eddie Luntayao to the stand to rebut the testimonies of Ritsel Blase and Dr. Milagros
Carloto. Eddie denied having witnessed what accused-appellants did to his son.He reiterated his earlier claim that after
accused-appellants had taken Randy, he and his wife and two daughters were locked inside a room. He disputed Blases
statement that his son was still alive when he was brought into the prayer room. He said he saw that his sons head
slumped while being carried by accused-appellants.[25]

As for the testimony of Dr. Carloto, Eddie admitted having talked with her when he and accused-appellant Nuez
went to her office on January 28, 1997. However, he denied having told her that his son was suffering from fever and
cough as he told her that Randy had a nervous breakdown. He took exception to Dr. Carlotos statement that he was
alone when he went to her office because it was Nuez who insisted that he (Eddie) accompany him in order to secure
the death certificate.[26]

On November 18, 1998, the trial court rendered a decision, the dispositive portion of which states:

WHEREFORE, in view of the foregoing facts and circumstances, [the] accused are all found guilty beyond reasonable
doubt of the crime of Murder and are hereby [sentenced] to suffer the penalty of RECLUSION PERPETUA, with the
accessory penalties of the law; to indemnify jointly and severally the heirs of the deceased Randy Luntayao in the sum
of P50,000.00; and to pay the costs. The accused, are, however, credited in full during the whole period of their
detention provided they will signify in writing that they will abide by all the rules and regulations of the penitentiary. [27]

In finding accused-appellants guilty of murder, the trial court stated:

Killing a person with treachery is murder even if there is no intent to kill. When death occurs, it is presumed to be the
natural consequence of physical injuries inflicted. Since the defendant did commit the crime with treachery, he is guilty
of murder, because of the voluntary presence of the qualifying circumstance of treachery (P v. Cagoco, 58 Phil. 530). All
the accused in the case at bar had contributed different acts in mercilessly inflicting injuries to the victim. For having
immersed the head of the victim into the barrel of water, all the herein accused should be held responsible for all the
consequences even if the result be different from that which was intended (Art. 4, par. 1, RPC). It is pointed out that in
P. v. Cagoco, 58 Phil. 524, even if there was no intent to kill[,] in inflicting physical injuries with treachery, the accused
in that case was convicted of murder. In murder qualified by treachery, it is required only that there is treachery in the
attack, and this is true even if the offender has no intent to kill the person assaulted. Under the guise of a ritual or
treatment, the accused should not have intentionally immersed upside down the head of Randy Luntayao into a barrel
of water; banged his head against the bench; pounded his chest with fists, or plunged a kitchen knife to his side so that
blood would come out for these acts would surely cause death to the victim. . . .

One who commits an intentional felony is responsible for all the consequences which may naturally and logically result
therefrom, whether foreseen or intended or not. Ordinarily, when a person commits a felony with malice, he intends the
consequences of his felonious act. In view of paragraph 1 of Art. 4, a person committing a felony is criminally liable
although the consequences of his felonious acts are not intended by him. . . .

....

Intent is presumed from the commission of an unlawful act. The presumption of criminal intent may arise from the proof
of the criminal act and it is for the accused to rebut this presumption. In the case at bar, there is enough evidence that
the accused confederated with one another in inflicting physical harm to the victim (an illegal act). These acts were
intentional, and the wrong done resulted in the death of their victim. Hence, they are liable for all the direct and natural
consequences of their unlawful act, even if the ultimate result had not been intended. [28]

Hence, this appeal. Accused-appellants allege that the trial court erred in convicting them of murder.[29]

First. It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over the
victim was consented to by the victims parents. With the permission of the victims parents, accused-appellant Carmen,
together with the other accused-appellants, proceeded to subject the boy to a treatment calculated to drive the bad
spirit from the boys body.Unfortunately, the strange procedure resulted in the death of the boy. Thus, accused-
appellants had no criminal intent to kill the boy. Their liability arises from their reckless imprudence because they ought
that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting
in homicide and not of murder.

Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without
malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on
the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes
the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions
due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time, and place.

The elements of reckless imprudence are apparent in the acts done by accused-appellants which, because of their
lack of medical skill in treating the victim of his alleged ailment, resulted in the latters death. As already stated, accused-
appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady
of Fatima, which is engaged in faith healing.

In United States v. Divino,[30] the accused, who was not a licensed physician, in an attempt to cure the victim of
ulcers in her feet, wrapped a piece of clothing which had been soaked in petroleum around the victims feet and then
lighted the clothing, thereby causing injuries to the victim. The Court held the accused liable for reckless imprudence
resulting in physical injuries. It was noted that the accused had no intention to cause an evil but rather to remedy the
victims ailment.

In another case, People v. Vda. de Golez,[31] the Court ruled that the proper charge to file against a non-medical
practitioner, who had treated the victim despite the fact that she did not possess the necessary technical knowledge or
skill to do so and caused the latters death, was homicide through reckless imprudence.

The trial courts reliance on the rule that criminal intent is presumed from the commission of an unlawful act is
untenable because such presumption only holds in the absence of proof to the contrary. [32] The facts of the case
indubitably show the absence of intent to kill on the part of the accused-appellants. Indeed, the trial courts findings can
be sustained only if the circumstances of the case are ignored and the Court limits itself to the time when accused-
appellants undertook their unauthorized treatment of the victim. Obviously, such an evaluation of the case cannot be
allowed.

Consequently, treachery cannot be appreciated for in the absence of intent to kill, there is no treachery or the
deliberate employment of means, methods, and manner of execution to ensure the safety of the accused from the
defensive or retaliatory attacks coming from the victim.[33] Viewed in this light, the acts which the trial court saw as
manifestations of treachery in fact relate to efforts by accused-appellants to restrain Randy Luntayao so that they can
effect the cure on him.

On the other hand, there is no merit in accused-appellants contention that the testimony of prosecution eyewitness
Honey Fe Abella is not credible. The Court is more than convinced of Honey Fes credibility. Her testimony is clear,
straightforward, and is far from having been coached or contrived. She was only a few meters away from the kitchen
where accused-appellants conducted their pray-over healing session not to mention that she had a good vantage point
as the kitchen had no roof nor walls but only a pantry. Her testimony was corroborated by the autopsy findings of Dr.
Mendez who, consistent with Honey Fes testimony, noted fractures on the third left rib and on the base of the victims
skull. With regard to Dr. Mendezs failure to find any stab wound in the victims body, he himself had explained that such
could be due to the fact that at the time the autopsy was conducted, the cadaver was already in an advanced state of
decomposition.Randy Luntayaos cadaver was exhumed 24 days after it had been buried. Considering the length of time
which had elapsed and the fact that the cadaver had not been embalmed, it was very likely that the soft tissues had so
decomposed that, as Dr. Mendez said, it was no longer possible to determine whether there was a stab wound. As for
the other points raised by accused-appellants to detract the credibility of Honey Fes testimony, the same appear to be
only minor and trivial at best.

Accused-appellants contend that the failure of the prosecution to present the testimony of Frances Claire Rivera as
well as the knife used in stabbing Randy Luntayao puts in doubt the prosecutions evidence. We do not think
so. The presentation of the knife in evidence is not indispensable.[34]

Finally, accused-appellants make much of the fact that although the case was tried under Judge Renato C. Dacudao,
the decision was rendered by Judge Galicano Arriesgado who took over the case after the prosecution and the defense
had rested their cases.[35] However, the fact that the judge who wrote the decision did not hear the testimonies of the
witnesses does not make him less competent to render a decision, since his ruling is based on the records of the case
and the transcript of stenographic notes of the testimonies of the witnesses.[36]

Second. The question now is whether accused-appellants can be held liable for reckless imprudence resulting in
homicide, considering that the information charges them with murder. We hold that they can.

Rule 120 of the Revised Rules of Criminal Procedure provides in pertinent parts:

SEC. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged
in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved
when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute
the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the
former constitute or form part of those constituting the latter.

In Samson v. Court of Appeals,[37] the accused were charged with, and convicted of, estafa through falsification of
public document. The Court of Appeals modified the judgment and held one of the accused liable for estafa through
falsification by negligence. On appeal, it was contended that the appeals court erred in holding the accused liable for
estafa through negligence because the information charged him with having wilfully committed estafa. In overruling this
contention, the Court held:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon v. Justice of the Peace of
Bacolor, G.R. No. L-6641, July 28, 1955, but a distinct crime in itself, designated as a quasi offense in our Penal Code,
it may however be said that a conviction for the former can be had under an information exclusively charging the
commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that
obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the
parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in
question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure
himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information
alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered
by the rule when there is a variance between the allegation and proof. . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for
here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial
to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same
time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of
negligence.

In People v. Fernando,[38] the accused was charged with, and convicted of, murder by the trial court. On appeal,
this Court modified the judgment and held the accused liable for reckless imprudence resulting in homicide after finding
that he did not act with criminal intent.

Third. Coming now to the imposable penalty, under Art. 365, reckless imprudence resulting in homicide is
punishable by arresto mayor in its maximum period to prision correccional in its medium period. In this case, taking
into account the pertinent provisions of Indeterminate Sentence Law, the accused-appellants should suffer the penalty
of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum.

As to their civil liability, accused-appellants should pay the heirs of Randy Luntayao an indemnity in the amount
of P50,000.00 and moral damages also in the amount of P50,000.00.[39] In addition, they should pay exemplary
damages in the amount of P30,000.00 in view of accused-appellants gross negligence in attempting to cure the victim
without a license to practice medicine and to give an example or correction for the public good. [40]

WHEREFORE, the decision of the Regional Trial Court, Branch 14, Cebu City, is AFFIRMED with the MODIFICATION
that accused-appellants are hereby declared guilty of reckless imprudence resulting in homicide and are each sentenced
to suffer an indeterminate prison term of four (4) months of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. In addition, accused-appellants are ORDERED jointly and severally to pay
the heirs of Randy Luntayao indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00, and
exemplary damages in the amount of P30,000.00.

SO ORDERED.
 [G.R. No. 124354. April 11, 2002]

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners, vs. COURT OF
APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA
GUTIERREZ, respondents.

RESOLUTION

KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a
reconsideration of the Decision, dated December 29, 1999, of this Court holding them civilly liable for petitioner Erlinda
Ramos comatose condition after she delivered herself to them for their professional care and management.

For better understanding of the issues raised in private respondents respective motions, we will briefly restate the
facts of the case as follows:

Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised to undergo an
operation for the removal of a stone in her gall bladder (cholecystectomy).She was referred to Dr. Hosaka, a surgeon,
who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at
private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner
Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.

Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of
the following day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda,
her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was
allowed to accompany her inside the operating room.

At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by
phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr.
Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor.

By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his
wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr.
Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled
operation.

Cruz, who was then still inside the operating room, heard about Dr. Hosakas arrival. While she held the hand of
Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez utter: ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Cruz noticed a bluish discoloration of Erlindas nailbeds on her
left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he
arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was
placed in a trendelenburg position a position where the head of the patient is placed in a position lower than her feet.
At this point, Cruz went out of the operating room to express her concern to petitioner Rogelio that Erlindas operation
was not going well.

Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At
almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to
petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the
hospital only four months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose
condition until she died on August 3, 1999.[1]

Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private
respondents. After due trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court found
that private respondents were negligent in the performance of their duties to Erlinda. On appeal by private respondents,
the Court of Appeals reversed the trial courts decision and directed petitioners to pay their unpaid medical bills to private
respondents.

Petitioners filed with this Court a petition for review on certiorari. The private respondents were then required to
submit their respective comments thereon. On December 29, 1999, this Court promulgated the decision which private
respondents now seek to be reconsidered. The dispositive portion of said Decision states:

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each exemplary damages and attorneys fees; and 5) the costs of the suit.[2]

In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds therefor:

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 APPEALS DECISION DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS OF 25 JUNE
1995, THEREBY DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER THE INSTANT PETITION;

B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED SEVERAL MATERIAL
FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN
RESPECT OF THE INSTANT CASE;

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN
OF EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE STANDARDS OF DUE
CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.

B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN
OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY INTUBATED PATIENT
ERLINDA RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF
PETITIONERS WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES
WHICH RENDERS DOUBT ON HER CREDIBILITY

D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA
AND DRA. CALDERON

E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED DAMAGES TO PETITIONERS
DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR.[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 Erlindas
comatose condition. The following objective facts allegedly negate a finding of negligence on her part: 1) That the
outcome of the procedure was a comatose patient and not a dead one; 2) That the patient had a cardiac arrest; and 3)
That the patient was revived from that cardiac arrest.[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 patients medical history, reviewing his current drug
therapy, conducting physical examination, interpreting laboratory data, and determining the appropriate prescription of
preoperative medications as necessary to the conduct of anesthesia.[12]

Physical examination of the patient entails not only evaluating the patients central nervous system, cardiovascular
system and lungs but also the upper airway. Examination of the upper airway would in turn include an analysis of the
patients cervical spine mobility, temporomandibular mobility, prominent central incisors, deceased or artificial teeth,
ability to visualize uvula and the thyromental distance.[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 patients heart and lungs and checked the latters blood pressure to determine if Erlinda
was indeed fit for operation.[15] However, she did not proceed to examine the patients airway. Had she been able to
check petitioner Erlindas airway prior to the operation, Dr. Gutierrez would most probably not have experienced difficulty
in intubating the former, and thus the resultant injury could have been avoided. As we have stated in our Decision:

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation
itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done
by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs
of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration
of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an hour before the
scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians centuries-old
Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.[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 Erlindas hapless condition was due to any fault or negligence on
the part of Dr. Gutierrez while she (Erlinda) was under the latters care. Dr. Gutierrez maintains that the bronchospasm
and cardiac arrest resulting in the patients comatose condition was brought about by the anaphylactic reaction of the
patient to Thiopental Sodium (pentothal).[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 Erlindas case. As we held in our
Decision, no evidence of stridor, skin reactions, or wheezing some of the more common accompanying signs of an
allergic reaction appears on record. No laboratory data were ever presented to the court.[21]

Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was revived
after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on the
matter of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not qualified to testify
thereon. Rather, Dr. Gutierrez invites the Courts attention to her synopsis on what transpired during Erlindas intubation:

12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was started by
mask. After pentothal injection this was followed by IV injection of Norcuron 4mg. After 2 minutes
02 was given by positive pressure for about one minute. Intubation with endotracheal tube 7.5 m
in diameter was done with slight difficulty (short neck & slightly prominent upper teeth) chest was
examined for breath sounds & checked if equal on both sides. The tube was then anchored to the
mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given.Blood pressure was
checked 120/80 & heart rate regular and normal 90/min.

12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone. Cyanosis
disappeared. Blood pressure and heart beats stable.

12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the chest. D_5%_H20
& 1 ampule of aminophyline by fast drip was started. Still the cyanosis was persistent.Patient was
connected to a cardiac monitor. Another ampule of of [sic] aminophyline was given and solu cortef
was given.

12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of adrenalin was given
& heart beat reappeared in less than one minute. Sodium bicarbonate & another dose of solu
cortef was given by IV. Cyanosis slowly disappeared & 02 continuously given & assisted positive
pressure. Laboratory exams done (see results in chart).

Patient was transferred to ICU for further management.[22]

 From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube. And the fact
that the cyanosis allegedly disappeared after pure oxygen was supplied through the tube proved that it was properly
placed.

The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr. Gutierrez
synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda was taken
out of the operating room. The standard practice in anesthesia is that every single act that the anesthesiologist performs
must be recorded. In Dr. Gutierrez case, she could not account for at least ten (10) minutes of what happened during
the administration of anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and
Dr. Gutierrez is instructive:

DR. ESTRELLA

You mentioned that there were two (2) attempts in the intubation period?

DR. GUTIERREZ

Yes.

Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted, which
was inserted?

A All the laryngoscope.

Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were asked that
you did a first attempt and the question was did you withdraw the tube? And you said you never withdrew the
tube, is that right?

A Yes.

Q Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube during that first
attempt. Now, the other thing that we have to settle here is when cyanosis occurred, is it recorded in the
anesthesia record when the cyanosis, in your recording when did the cyanosis occur?

A (sic)

Q Is it a standard practice of anesthesia that whatever you do during that period or from the time of induction to the
time that you probably get the patient out of the operating room that every single action that you do is so
recorded in your anesthesia record?

A I was not able to record everything I did not have time anymore because I did that after the, when the patient
was about to leave the operating room. When there was second cyanosis already that was the (interrupted)

Q When was the first cyanosis?

A The first cyanosis when I was (interrupted)

Q What time, more or less?

A I think it was 12:15 or 12:16.

Q Well, if the record will show you started induction at 12:15?

A Yes, Your Honor.

Q And the first medication you gave was what?

A The first medication, no, first the patient was oxygenated for around one to two minutes.

Q Yes, so, that is about 12:13?

A Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one
minute.

Q So, that is about 12:13 no, 12:15, 12:17?

A Yes, and then, after one minute another oxygenation was given and after (interrupted)

Q 12:18?

A Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant (interrupted)

Q After that relaxant, how long do you wait before you do any manipulation?

A Usually you wait for two minutes or three minutes.

Q So, if our estimate of the time is accurate we are now more or less 12:19, is that right?

A Maybe.

Q 12:19. And at that time, what would have been done to this patient?

A After that time you examine the, if there is relaxation of the jaw which you push it downwards and when I saw
that the patient was relax because that monorcure is a relaxant, you cannot intubate the patient or insert the
laryngoscope if it is not keeping him relax. So, my first attempt when I put the laryngoscope on I saw the
trachea was deeply interiorly. So, what I did ask mahirap ata ito ah. So, I removed the laryngoscope and
oxygenated again the patient.

Q So, more or less you attempted to do an intubation after the first attempt as you claimed that it was only the
laryngoscope that was inserted.

A Yes.
 Q And in the second attempt you inserted the laryngoscope and now possible intubation?

A Yes.

Q And at that point, you made a remark, what remark did you make?

A I said mahirap ata ito when the first attempt I did not see the trachea right away. That was when I (interrupted)

Q That was the first attempt?

A Yes.

Q What about the second attempt?

A On the second attempt I was able to intubate right away within two to three seconds.

Q At what point, for purposes of discussion without accepting it, at what point did you make the comment na mahirap
ata to intubate, mali ata ang pinasukan

A I did not say mali ata ang pinasukan I never said that.

Q Well, just for the information of the group here the remarks I am making is based on the documents that were
forwarded to me by the Supreme Court. That is why for purposes of discussion I am trying to clarify this for the
sake of enlightenment. So, at what point did you ever make that comment?

A Which one, sir?

Q The mahirap intubate ito assuming that you (interrupted)

A Iyon lang, that is what I only said mahirap intubate (interrupted)

Q At what point?

A When the first attempt when I inserted the laryngoscope for the first time.

Q So, when you claim that at the first attempt you inserted the laryngoscope, right?

A Yes.

Q But in one of the recordings somewhere at the, somewhere in the transcript of records that when the lawyer of
the other party try to inquire from you during the first attempt that was the time when mayroon ba kayong
hinugot sa tube, I do not remember the page now, but it seems to me it is there. So, that it was on the second
attempt that (interrupted)

A I was able to intubate.

Q And this is more or less about what time 12:21?

A Maybe, I cannot remember the time, Sir.

Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to 12:30 there was
no recording of the vital signs. And can we presume that at this stage there was already some problems in
handling the patient?

A Not yet.

Q But why are there no recordings in the anesthesia record?

A I did not have time.

Q Ah, you did not have time, why did you not have time?

A Because it was so fast, I really (at this juncture the witness is laughing)

Q No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or less clarify
certainty more ore less on the record.

A Yes, Sir.

Q And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to 12:30, and
going over your narration, it seems to me that the cyanosis appeared ten (10) minutes after induction, is that
right?

A Yes.

Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?

A Yes.

Q And that the 12:25 is after the 12:20?

A We cannot (interrupted)

Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano, kung mali ito
kuwan eh di ano. So, ganoon po ano, that it seems to me that there is no recording from 12:20 to 12:30, so, I
am just wondering why there were no recordings during the period and then of course the second cyanosis,
after the first cyanosis. I think that was the time Dr. Hosaka came in?

A No, the first cyanosis (interrupted).[23]

We cannot thus give full credence to Dr. Gutierrez synopsis in light of her admission that it does not fully reflect
the events that transpired during the administration of anesthesia on Erlinda.As pointed out by Dr. Estrella, there was
a ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were not recorded during that time. The
absence of these data is particularly significant because, as found by the trial court, it was the absence of oxygen supply
for four (4) to five (5) minutes that caused Erlindas comatose condition.

On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the Decision, she
is competent to testify on matters which she is capable of observing such as, the statements and acts of the physician
and surgeon, external appearances and manifest conditions which are observable by any one. [24] Cruz, Erlindas sister-
in-law, was with her inside the operating room. Moreover, being a nurse and Dean of the Capitol Medical Center School
of Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez
remark, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. She observed that the nailbeds
of Erlinda became bluish and thereafter Erlinda was placed in trendelenburg position. [25] Cruz 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 patients brain. The brain was thus temporarily deprived of
oxygen supply causing Erlinda to go into coma.

The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of
anesthesia and in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents
Dr. Gutierrez and Dr. Hosaka.[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 patients voice, considering that the surgeon did not have a hand in the intubation of the patient.
The court rejected the application of the Captain-of-the-Ship Doctrine, citing the fact that the field of medicine has
become specialized such that surgeons can no longer be deemed as having control over the other personnel in the
operating room. It held that [a]n assignment of liability based on actual control more realistically reflects the actual
relationship which exists in a modern operating room.[35] Hence, only the anesthesiologist who inserted the endotracheal
tube into the patients throat was held liable for the injury suffered by the latter.

This contention fails to persuade.

That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean
that this Court will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case
justify the application of the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr.
Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on Erlinda.

First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented to
petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had worked
together since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the services of Dr. Gutierrez
to administer the anesthesia on his patient.[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 patients nails had become dusky
and had to call Dr. Gutierrezs attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in
practice, the anesthesiologist would also have to observe the surgeons acts during the surgical process and calls the
attention of the surgeon whenever necessary[39] in the course of the treatment. The duties of Dr. Hosaka and those of
Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim them to be. On
the contrary, it is quite apparent that they have a common responsibility to treat the patient, which responsibility
necessitates that they call each others attention to the condition of the patient while the other physician is performing
the necessary medical procedures.

It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner Erlinda promptly,
for he arrived more than three (3) hours late for the scheduled operation.The cholecystectomy was set for June 17,
1985 at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his patients well being,
Dr. Hosaka scheduled two procedures on the same day, just thirty minutes apart from each other, at different
hospitals. Thus, when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was
kept in a state of uncertainty at the DLSMC.

The unreasonable delay in petitioner Erlindas scheduled operation subjected her to continued starvation and
consequently, to the risk of acidosis,[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
patients anxiety usually causes the outpouring of adrenaline which in turn results in high blood pressure or disturbances
in the heart rhythm:

DR. CAMAGAY:

x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second is to dry up
the secretions and Third is to relieve pain. Now, it is very important to alleviate anxiety because anxiety is
associated with the outpouring of certain substances formed in the body called adrenalin. When a patient is
anxious there is an outpouring of adrenalin which would have adverse effect on the patient. One of it is high
blood pressure, the other is that he opens himself to disturbances in the heart rhythm, which would have adverse
implications. So, we would like to alleviate patients anxiety mainly because he will not be in control of his body
there could be adverse results to surgery and he will be opened up; a knife is going to open up his body. x x 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 DLSMCs liability for the resulting injury to petitioner Erlinda, we held that respondent
hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil Code[45] since there exists an
employer-employee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant
staff. While consultants are not, technically employees, x x x the control exercised, the hiring and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment
of wages. In assessing whether such a relationship in fact exists, the control test is determining. x x x [46]

DLSMC however contends that applying the four-fold test in determining whether such a relationship exists between
it and the respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer of the
respondent doctors.

It has been consistently held that in determining whether an employer-employee relationship exists between the
parties, the following elements must be present: (1) selection and engagement of services; (2) payment of wages; (3)
the power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to be used in
reaching such an end.[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
consultants 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
hospitals obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and
medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well
as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctors orders are carried out
strictly.[51]

After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospitals position
on this issue is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka
which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code.

As explained by respondent hospital, that the admission of a physician to membership in DLSMCs medical staff as
active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads
of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the
department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said
director or administrator validates the committee's recommendation. [52] Similarly, in cases where a disciplinary action
is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and
filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital
administrator merely acts as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by
the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his
patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its
object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the
hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment
of the patient.

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the
part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment.

For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner
Erlinda.

Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of the supervening
event of petitioner Erlindas death. In the assailed Decision, the Court awarded actual damages of One Million Three
Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner Erlindas treatment and care
from the date of promulgation of the Decision up to the time the patient expires or survives. [53] In addition thereto, the
Court awarded temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in view of the chronic
and continuing nature of petitioner Erlindas injury and the certainty of further pecuniary loss by petitioners as a result
of said injury, the amount of which, however, could not be made with certainty at the time of the promulgation of the
decision. The Court justified such award in this manner:

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible
future complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case,
be made with certainty. In other words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of
such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that
these damages cover two distinct phases.

As it would not be equitableand certainly not in the best interests of the administration of justicefor the victim in such
cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages
previously awardedtemperate damages are appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having premised our award for compensatory damages on the amount
provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the
value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility
which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard
care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances,
an award of P1,500,000.00 in temperate damages would therefore be reasonable.[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, attorneys fees and costs of suit should be awarded to petitioners.

WHEREFORE, the assailed Decision is hereby modified as follows:

(1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury
suffered by petitioner Erlinda Ramos on June 17, 1985;

(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable for
the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners

(a) P1,352,000.00 as actual damages;

(b) P2,000,000.00 as moral damages;

(c) P100,000.00 as exemplary damages;

(d) P100,000.00 as attorneys fees; and

(e) the costs of the suit.

SO ORDERED.
 [G.R. No. 144681. June 21, 2004]

PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE, ASSOCIATE

COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE GUZMAN,
JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. POLICARPIO, EDGARDO T. FERNANDO and
RICARDO D. FULGENCIO II, petitioners, vs. ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA
S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M.
PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D.
SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO, MARITEL M.
ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C.
ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA,
JR., EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P.
ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO,
JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T.
CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L.
SERRANO, FEDERICO L. CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY, BERNARDITA B. SY,
GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S.
NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J.
CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. CUNDANGAN, RHONEIL R.
DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V.
FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA.
ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR,
ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, respondents.

DECISION

TINGA, J.:

This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision,[1] dated May
16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate court affirmed the
judgment[2] dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-
66530. The trial court allowed the respondents to take their physicians oath and to register as duly licensed physicians.
Equally challenged is the Resolution[3] promulgated on August 25, 2000of the Court of Appeals, denying petitioners
Motion for Reconsideration.

The facts of this case are as follows:

The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They passed
the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner
Professional Regulation Commission (PRC) then released their names as successful examinees in the medical licensure
examination.

Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees
from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (Bio-Chem) and
Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees scored 100%
in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-
Gyne. The Board also observed that many of those who passed from Fatima got marks of 95% or better in both subjects,
and no one got a mark lower than 90%. A comparison of the performances of the candidates from other schools was
made. The Board observed that strangely, the unusually high ratings were true only for Fatima College examinees. It
was a record-breaking phenomenon in the history of the Physician Licensure Examination.

On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the examinees
from the Fatima College of Medicine.[4] The PRC asked the National Bureau of Investigation (NBI) to investigate whether
any anomaly or irregularity marred the February 1993 Physician Licensure Examination.

Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician and
authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical analysis of the
results in Bio-Chem and Ob-Gyne of the said examination.

On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores in Bio-Chem and
Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help
College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually
clustered close to each other. He concluded that there must be some unusual reason creating the clustering of scores
in the two subjects. It must be a cause strong enough to eliminate the normal variations that one should expect from
the examinees [of Fatima College] in terms of talent, effort, energy, etc.[5]

For its part, the NBI found that the questionable passing rate of Fatima examinees in the [1993] Physician
Examination leads to the conclusion that the Fatima examinees gained early access to the test questions.[6]

On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose Ramoncito P.
Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity) filed a special
civil action for mandamus, with prayer for preliminary mandatory injunction docketed as Civil Case No. 93-66530 with
the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the other respondents as intervenors.

Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with immorality,
dishonest conduct, fraud, and deceit in connection with the Bio-Chem and Ob-Gyne examinations. It recommended that
the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case No. 1687 by the PRC.

On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory
injunction sought by the respondents. It ordered the petitioners to administer the physicians oath to Arlene V. De
Guzman et al., and enter their names in the rolls of the PRC.
 The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory
injunctive writ, docketed as CA-G.R. SP No. 31701.

On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of
the Decision ordaining as follows:

WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by the lower
court against petitioners is hereby nullified and set aside.

SO ORDERED.[7]

Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. In
our Resolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the appellate
court.

Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil
Case No. 93-66530 was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses to sworn
questions-and-answers. This was without prejudice to cross-examination by the opposing counsel.

On December 13, 1993, petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set
for December 15. The trial court then ruled that petitioners waived their right to cross-examine the witnesses.

On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-
appearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial court
denied the motion for lack of notice to adverse counsel. It also denied the Motion for Reconsideration that followed on
the ground that adverse counsel was notified less than three (3) days prior to the hearing.

Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents herein
moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4, 1994.

The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul the Orders of
the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. We referred the petition to the Court
of Appeals where it was docketed as CA-G.R. SP No. 34506.

On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:

WHEREFORE, the present petition for certiorari with prayer for temporary restraining order/preliminary injunction is
GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-
Manila, Branch 52, and all further proceedings taken by it in Special Civil Action No. 93-66530 are hereby DECLARED
NULL and VOID. The said RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses,
to allow petitioners to present their evidence in due course of trial, and thereafter to decide the case on the merits on
the basis of the evidence of the parties. Costs against respondents.

IT IS SO ORDERED.[8]

The trial was then set and notices were sent to the parties.

A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation and
Motion praying for the partial reconsideration of the appellate courts decision in CA-G.R. SP No. 34506, and for the
outright dismissal of Civil Case No. 93-66530. The petitioners asked for the suspension of the proceedings.

In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled
hearing dates, and reset the proceedings to October 21 and 28, 1994.

Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R. SP
No. 34506. Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No. 117817,
entitled Professional Regulation Commission, et al. v. Court of Appeals, et al.

On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 93-66530. Upon
motion of the respondents herein, the trial court ruled that herein petitioners waived their right to cross-examine the
herein respondents. Trial was reset to November 28, 1994.

On November 25, 1994, petitioners counsel moved for the inhibition of the trial court judge for alleged partiality.
On November 28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the trial court
denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for decision.

On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which
reads:

WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except those
with asterisks and footnotes in pages 1 & 2 of this decision) [sic],[9] to take the physicians oath and to register them as
physicians.

It should be made clear that this decision is without prejudice to any administrative disciplinary action which may be
taken against any of the petitioners for such causes and in the manner provided by law and consistent with the
requirements of the Constitution as any other professionals.

No costs.

SO ORDERED.[10]
 As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed as
G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1) G.R.
No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in
CA-G.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 93-66530, and in the alternative,
to set aside the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to inhibit himself, and
Civil Case No. 93-66530 be re-raffled to another branch.

On December 26, 1994, the petitioners herein filed their Notice of Appeal[11] in Civil Case No. 93-66530, thereby
elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283.

In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.

On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:

WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The petition in G.R. No. 118437 is likewise
DISMISSED on the ground that there is a pending appeal before the Court of Appeals. Assistant Solicitor General Amparo
M. Cabotaje-Tang is advised to be more circumspect in her dealings with the courts as a repetition of the same or similar
acts will be dealt with accordingly.

SO ORDERED.[12]

While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the original
petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat, Ophelia C.
Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-
Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel
M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N.
Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M.
Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C.
Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no longer interested in proceeding with the
case and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I. Yeban-
Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica, Dayminda G.
Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan,
Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D.
Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that its decision
in CA-G.R. SP No. 37283 would not apply to them.

On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit:

WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and DISMISS the
instant appeal.

No pronouncement as to costs.

SO ORDERED.[13]

In sustaining the trial courts decision, the appellate court ratiocinated that the respondents complied with all the
statutory requirements for admission into the licensure examination for physicians in February 1993. They all passed
the said examination. Having fulfilled the requirements of Republic Act No. 2382, [14] they should be allowed to take their
oaths as physicians and be registered in the rolls of the PRC.

Hence, this petition raising the following issues:

WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE
LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS
DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE
ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES.

II

WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE
CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO BECOME
DOCTORS.[15]

To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the judgment
of the trial court that respondents are entitled to a writ of mandamus?

The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a writ of mandamus
to issue, the applicant must have a well-defined, clear and certain legal right to the thing demanded and it is the duty
of the respondent to perform the act required. Thus, mandamus may be availed of only when the duty sought to be
performed is a ministerial and not a discretionary one. The petitioners argue that the appellate courts decision in CA-
G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its own pronouncement
in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to engage
in the practice of medicine becomes discretionary on the PRC if there exists some doubt that the successful examinee
has not fully met the requirements of the law. The petitioners stress that this Courts Resolution dated May 24, 1994 in
G.R. No. 112315 held that there was no showing that the Court of Appeals had committed any reversible error in
rendering the questioned judgment in CA-G.R. SP No. 31701. The petitioners point out that our Resolution in G.R. No.
112315 has long become final and executory.
 Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have the
obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians
pursuant to Section 20[16] of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents
complied with all the requirements of Rep. Act No. 2382. Furthermore, respondents were admitted by the Medical Board
to the licensure examinations and had passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the
petitioners had the obligation to administer their oaths as physicians and register them.

Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the sovereign,
directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a
particular duty therein specified, which duty results from the official station of the party to whom the writ is directed,
or from operation of law.[17] Section 3 of Rule 65[18] of the 1997 Rules of Civil Procedure outlines two situations when a
writ of mandamus may issue, when any tribunal, corporation, board, officer or person unlawfully (1) neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or (2)
excludes another from the use and enjoyment of a right or office to which the other is entitled.

We shall discuss the issues successively.

1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians under
Rep. Act No. 2382.

For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear legal
duty, not involving discretion.[19] Moreover, there must be statutory authority for the performance of the act, [20] and
the performance of the duty has been refused.[21] Thus, it must be pertinently asked now: Did petitioners have the duty
to administer the Hippocratic Oath and register respondents as physicians under the Medical Act of 1959?

As found by the Court of Appeals, on which we agree on the basis of the records:

It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the statutory
requirements for admission into the licensure examinations for physicians conducted and administered by the
respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be made of the fact that all of them
successfully passed the same examinations.[22]

The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the respondents
to take their oaths as physicians and register them, steps which would enable respondents to practice the medical
profession[23] pursuant to Section 20 of the Medical Act of 1959?

The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the petitioners
had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians. But it
is a basic rule in statutory construction that each part of a statute should be construed in connection with every other
part to produce a harmonious whole, not confining construction to only one section. [24] The intent or meaning of the
statute should be ascertained from the statute taken as a whole, not from an isolated part of the provision. Accordingly,
Section 20 of Rep. Act No. 2382, as amended should be read in conjunction with the other provisions of the Act. Thus,
to determine whether the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents
and register them as physicians, recourse must be had to the entirety of the Medical Act of 1959.

A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word shall with respect
to the issuance of certificates of registration. Thus, the petitioners shall sign and issue certificates of registration to
those who have satisfactorily complied with the requirements of the Board. In statutory construction the term shall is a
word of command. It is given imperative meaning. Thus, when an examinee satisfies the requirements for the grant of
his physicians license, the Board is obliged to administer to him his oath and register him as a physician, pursuant to
Section 20 and par. (1) of Section 22[25] of the Medical Act of 1959.

However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory compliance
with the Board requirements by the respondents. The unusually high scores in the two most difficult subjects was
phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised grave doubts about the integrity,
if not validity, of the tests. These doubts have to be appropriately resolved.

Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative
investigations and disapprove applications for examination or registration, pursuant to the objectives of Rep. Act No.
2382 as outlined in Section 1[26] thereof. In this case, after the investigation, the Board filed before the PRC, Adm. Case
No. 1687 against the respondents to ascertain their moral and mental fitness to practice medicine, as required by
Section 9[27] of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board ruled:

WHEREFORE, the BOARD hereby CANCELS the respondents[] examination papers in the Physician Licensure
Examinations given in February 1993 and further DEBARS them from taking any licensure examination for a period of
ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if they so desire, apply for the scheduled
examinations for physicians after the lapse of the period imposed by the BOARD.

SO ORDERED.[28]

Until the moral and mental fitness of the respondents could be ascertained, according to petitioners, the Board has
discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to them.
The writ of mandamus does not lie to compel performance of an act which is not duly authorized.

The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of registration
only in the following instances: (1) to any candidate who has been convicted by a court of competent jurisdiction of any
criminal offense involving moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the
investigation by the Board; or (3) has been declared to be of unsound mind. They aver that none of these circumstances
are present in their case.

Petitioners reject respondents argument. We are informed that in Board Resolution No. 26,[29] dated July 21, 1993,
the Board resolved to file charges against the examinees from Fatima College of Medicine for immorality, dishonesty,
fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations. It likewise sought to cancel the
examination results obtained by the examinees from the Fatima College.

Section 8[30] of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice medicine in
the Philippines, must have satisfactorily passed the corresponding Board Examination. Section 22, in turn, provides that
the oath may only be administered to physicians who qualified in the examinations. The operative word here is
satisfactorily, defined as sufficient to meet a condition or obligation or capable of dispelling doubt or
ignorance.[31] Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the respondents
satisfactorily passed the licensure examinations. The Board instead sought to nullify the examination results obtained
by the respondents.

2. On the Right Of The Respondents To Be Registered As Physicians

The function of mandamus is not to establish a right but to enforce one that has been established by law. If no
legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal remedy
for a legal right.[32] There must be a well-defined, clear and certain legal right to the thing demanded. [33] It is long
established rule that a license to practice medicine is a privilege or franchise granted by the government.[34]

It is true that this Court has upheld the constitutional right [35] of every citizen to select a profession or course of
study subject to a fair, reasonable, and equitable admission and academic requirements. [36] But like all rights and
freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to
safeguard health, morals, peace, education, order, safety, and general welfare of the people.[37] Thus, persons who
desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an
examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the field
of medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who
would practice medicine. In a previous case, it may be recalled, this Court has ordered the Board of Medical Examiners
to annul both its resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and
Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines, without first passing the
examination required by the Philippine Medical Act.[38] In another case worth noting, we upheld the power of the State
to upgrade the selection of applicants into medical schools through admission tests.[39]

It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation
cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body that
regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance
with certain conditions. Such conditions may not, however, require giving up ones constitutional rights as a condition
to acquiring the license.[40] Under the view that the legislature cannot validly bestow an arbitrary power to grant or
refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public
officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without
prescribing definite rules and conditions for the guidance of said officials in the exercise of their power.[41]

In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which
prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the board
examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a physicians license,
or revoking a license that has been issued. Verily, to be granted the privilege to practice medicine, the applicant must
show that he possesses all the qualifications and none of the disqualifications. Furthermore, it must appear that he has
fully complied with all the conditions and requirements imposed by the law and the licensing authority. Should doubt
taint or mar the compliance as being less than satisfactory, then the privilege will not issue. For said privilege is
distinguishable from a matter of right, which may be demanded if denied. Thus, without a definite showing that the
aforesaid requirements and conditions have been satisfactorily met, the courts may not grant the writ of mandamus to
secure said privilege without thwarting the legislative will.

3. On the Ripeness of the Petition for Mandamus

Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for mandamus
below for being premature. They argue that the administrative remedies had not been exhausted. The records show
that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised
in G.R. No. 115704, which petition we referred to the Court of Appeals, where it was docketed as CA-G.R. SP No. 34506.
On motion for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss on the ground
that the prayers for the nullification of the order of the trial court and the dismissal of Civil Case No. 93-66530 were
inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision of the Court of Appeals in CA-G.R.
SP No. 34506 insofar as it did not order the dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July
9, 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that:

Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-66530
sought to be resolved in the instant petition has been rendered meaningless by an event taking place prior to the filing
of this petition and denial thereof should follow as a logical consequence. [42] There is no longer any justiciable
controversy so that any declaration thereon would be of no practical use or value. [43] It should be recalled that in its
decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by private respondents, which
decision was received by petitioners on 20 December 1994. Three (3) days after, or on 23 December 1994, petitioners
filed the instant petition. By then, the remedy available to them was to appeal the decision to the Court of Appeals,
which they in fact did, by filing a notice of appeal on 26 December 1994.[44]

The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance upon
the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any.

Section 26[45] of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents
herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable judgment
to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the Office of the President;
and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case to court via a special civil
action of certiorari. Thus, as a rule, mandamus will not lie when administrative remedies are still available. [46] However,
the doctrine of exhaustion of administrative remedies does not apply where, as in this case, a pure question of law is
raised.[47] On this issue, no reversible error may, thus, be laid at the door of the appellate court in CA-G.R. SP No.
37283, when it refused to dismiss Civil Case No. 93-66530.
 As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo,
Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza,
Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M.
Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding,
Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-
Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo,
and Jose Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R. SP No. 37283, that
they were no longer interested in proceeding with the case and moved for its dismissal insofar as they were concerned.
A similar manifestation and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma
G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma.
Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V.
Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E.
Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and motions, the appellate court in CA-G.R. SP
No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as the instant case is a petition for review
of the appellate courts ruling in CA-G.R. SP No. 37283, a decision which is inapplicable to the aforementioned
respondents will similarly not apply to them.

As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D.
Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. Pangilinan,
Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in Civil
Case No. 93-66530, dropping their names from the suit.

Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman, Celerina
S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez, Ernesto L.
Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners.

WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May 16, 2000, of the
Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the Regional
Trial Court of Manila, Branch 52, in Civil Case No. 93-66530, ordering petitioners to administer the physicians oath to
herein respondents as well as the resolution dated August 25, 2000, of the appellate court, denying the petitioners
motion for reconsideration, are REVERSED and SET ASIDE; and (2) the writ of mandamus, issued in Civil Case No. 93-
66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE. SO ORDERED.
 [G.R. No. 130003. October 20, 2004]

JONAS AONUEVO, petitioner vs. HON. COURT OF APPEALS and JEROME VILLAGRACIA, respondent

DECISION

TINGA, J.:

The bicycle provides considerable speed and freedom of movement to the rider. It derives a certain charm from
being unencumbered by any enclosure, affording the cyclist the perception of relative liberty. It also carries some
obvious risks on the part of the user and has become the subject of regulation, if not by the government, then by
parental proscription.

The present petition seeks to bar recovery by an injured cyclist of damages from the driver of the car which had
struck him. The argument is hinged on the cyclists failure to install safety devices on his bicycle. However, the lower
courts agreed that the motorist himself caused the collision with his own negligence. The facts are deceptively simple,
but the resolution entails thorough consideration of fundamental precepts on negligence.

The present petition raises little issue with the factual findings of the Regional Trial Court (RTC), Branch 160, of
Pasig City, as affirmed by the Court of Appeals. Both courts adjudged petitioner, Jonas Aonuevo ( Aonuevo ), liable for
the damages for the injuries sustained by the cyclist, Jerome Villagracia (Villagracia). Instead, the petition hinges on a
sole legal question, characterized as novel by the petitioner: whether Article 2185 of the New Civil Code, which presumes
the driver of a motor vehicle negligent if he was violating a traffic regulation at the time of the mishap, should apply by
analogy to non-motorized vehicles.[1]

As found by the RTC, and affirmed by the Court of Appeals, the accident in question occurred on 8 February 1989,
at around nine in the evening, at the intersection of Boni Avenue and Barangka Drive in Mandaluyong (now a city).
Villagracia was traveling along Boni Avenue on his bicycle, while Aonuevo, traversing the opposite lane was driving his
Lancer car with plate number PJJ 359. The car was owned by Procter and Gamble Inc., the employer of Aonuevos
brother, Jonathan. Aonuevo was in the course of making a left turn towards Libertad Street when the collision occurred.
Villagracia sustained serious injuries as a result, which necessitated his hospitalization several times in 1989, and forced
him to undergo four (4) operations.

On 26 October 1989, Villagracia instituted an action for damages against Procter and Gamble Phils., Inc. and
Aonuevo before the RTC.[2] He had also filed a criminal complaint against Aonuevo before the Metropolitan Trial Court
of Mandaluyong, but the latter was subsequently acquitted of the criminal charge.[3] Trial on the civil action ensued, and
in a Decision dated 9 March 1990, the RTC rendered judgment against Procter and Gamble and Aonuevo, ordering them
to pay Villagracia the amounts of One Hundred Fifty Thousand Pesos (P150, 000.00). for actual damages, Ten Thousand
Pesos (P10,000.00) for moral damages, and Twenty Thousand Pesos (P20,000.00) for attorneys fees, as well as legal
costs.[4] Both defendants appealed to the Court of Appeals.

In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division affirmed the RTC Decision in toto[6]. After
the Court of Appeals denied the Motion for Reconsideration in a Resolution[7] dated 22 July 1997, Procter and Gamble
and Aonuevo filed their respective petitions for review with this Court. Procter and Gambles petition was denied by this
Court in a Resolution dated 24 November 1997. Aonuevos petition,[8] on the other hand, was given due course,[9] and
is the subject of this Decision.

In arriving at the assailed Decision, the Court of Appeals affirmed the factual findings of the RTC. Among them:
that it was Aonuevos vehicle which had struck Villagracia;[10]that Aonuevos vehicle had actually hit Villagracias left mid-
thigh, thus causing a comminuted fracture;[11] that as testified by eyewitness Alfredo Sorsano, witness for Villagracia,
Aonuevo was umaarangkada, or speeding as he made the left turn into Libertad; [12] that considering Aonuevos claim
that a passenger jeepney was obstructing his path as he made the turn. Aonuevo had enough warning to control his
speed;[13] and that Aonuevo failed to exercise the ordinary precaution, care and diligence required of him in order that
the accident could have been avoided.[14] Notably, Aonuevo, in his current petition, does not dispute the findings of
tortious conduct on his part made by the lower courts, hinging his appeal instead on the alleged negligence of Villagracia.
Aonuevo proffers no exculpatory version of facts on his part, nor does he dispute the conclusions made by the RTC and
the Court of Appeals. Accordingly, the Court, which is not a trier of facts, [15] is not compelled to review the factual
findings of the lower courts, which following jurisprudence have to be received with respect and are in fact generally
binding.[16]

Notwithstanding, the present petition presents interesting questions for resolution. Aonuevos arguments are
especially fixated on a particular question of law: whether Article 2185 of the New Civil Code should apply by analogy
to non-motorized vehicles.[17] In the same vein, Aonuevo insists that Villagracias own fault and negligence serves to
absolve the former of any liability for damages.

Its is easy to discern why Aonuevo chooses to employ this line of argument. Aonuevo points out that Villagracias
bicycle had no safety gadgets such as a horn or bell, or headlights, as invoked by a 1948 municipal ordinance. [18] Nor
was it duly registered with the Office of the Municipal Treasurer, as required by the same ordinance. Finally, as admitted
by Villagracia, his bicycle did not have foot brakes.[19] Before this Court, Villagracia does not dispute these allegations,
which he admitted during the trial, but directs our attention instead to the findings of Aonuevos own
negligence.[20] Villagracia also contends that, assuming there was contributory negligence on his part, such would not
exonerate Aonuevo from payment of damages. The Court of Appeals likewise acknowledged the lack of safety gadgets
on Villagracias bicycle, but characterized the contention as off-tangent and insufficient to obviate the fact that it was
Aonuevos own negligence that caused the accident.[21]

Aonuevo claims that Villagracia violated traffic regulations when he failed to register his bicycle or install safety
gadgets thereon. He posits that Article 2185 of the New Civil Code applies by analogy. The provision reads:

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap he was violating any traffic regulation.
 The provision was introduced for the first time in this jurisdiction with the adoption in 1950 of the New Civil
Code.[22] Its applicability is expressly qualified to motor vehicles only, and there is no ground to presume that the law
intended a broader coverage.

Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all types of vehicles [23]. He points out that
modern-day travel is more complex now than when the Code was enacted, the number and types of vehicles now in
use far more numerous than as of then. He even suggests that at the time of the enactment of the Code, the legislators
must have seen that only motor vehicles were of such public concern that they had to be specifically mentioned, yet
today, the interaction of vehicles of all types and nature has inescapably become matter of public concern so as to
expand the application of the law to be more responsive to the times.[24]

What Aonuevo seeks is for the Court to amend the explicit command of the legislature, as embodied in Article
2185, a task beyond the pale of judicial power. The Court interprets, and not creates, the law. However, since the Court
is being asked to consider the matter, it might as well examine whether Article 2185 could be interpreted to include
non-motorized vehicles.

At the time Article 2185 was formulated, there existed a whole array of non-motorized vehicles ranging from
human-powered contraptions on wheels such as bicycles, scooters, and animal-drawn carts such
as calesas and carromata. These modes of transport were even more prevalent on the roads of the 1940s and 1950s
than they are today, yet the framers of the New Civil Code chose then to exclude these alternative modes from the
scope of Article 2185 with the use of the term motorized vehicles. If Aonuevo seriously contends that the application of
Article 2185 be expanded due to the greater interaction today of all types of vehicles, such argument contradicts
historical experience. The ratio of motorized vehicles as to non-motorized vehicles, as it stood in 1950, was significantly
lower than as it stands today. This will be certainly affirmed by statistical data, assuming such has been compiled, much
less confirmed by persons over sixty. Aonuevos characterization of a vibrant intra-road dynamic between motorized and
non-motorized vehicles is more apropos to the past than to the present.

There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable today. He premises that the need for
the distinction between motorized and non-motorized vehicles arises from the relative mass of number of these vehicles.
The more pertinent basis for the segregate classification is the difference in type of these vehicles. A motorized vehicle
operates by reason of a motor engine unlike a non-motorized vehicle, which runs as a result of a direct exertion by man
or beast of burden of direct physical force. A motorized vehicle, unimpeded by the limitations in physical exertion. is
capable of greater speeds and acceleration than non-motorized vehicles. At the same time, motorized vehicles are more
capable in inflicting greater injury or damage in the event of an accident or collision. This is due to a combination of
factors peculiar to the motor vehicle, such as the greater speed, its relative greater bulk of mass, and greater
combustability due to the fuels that they use.

There long has been judicial recognition of the peculiar dangers posed by the motor vehicle. As far back as 1912,
in the U.S. v. Juanillo[25], the Court has recognized that an automobile is capable of great speed, greater than that of
ordinary vehicles hauled by animals, and beyond doubt it is highly dangerous when used on country roads, putting to
great hazard the safety and lives of the mass of the people who travel on such roads. [26] In the same case, the Court
emphasized:

A driver of an automobile, under such circumstances, is required to use a greater degree of care than drivers of animals,
for the reason that the machine is capable of greater destruction, and furthermore, it is absolutely under the power and
control of the driver; whereas, a horse or other animal can and does to some extent aid in averting an accident. It is
not pleasant to be obliged to slow down automobiles to accommodate persons riding, driving, or walking. It is probably
more agreeable to send the machine along and let the horse or person get out of the way in the best manner possible;
but it is well to understand, if this course is adopted and an accident occurs, that the automobile driver will be called
upon to account for his acts. An automobile driver must at all times use all the care and caution which a careful and
prudent driver would have exercised under the circumstances.[27]

American jurisprudence has had occasion to explicitly rule on the relationship between the motorist and the cyclist.
Motorists are required to exercise ordinary or reasonable care to avoid collision with bicyclists. [28] While the duty of
using ordinary care falls alike on the motorist and the rider or driver of a bicycle, it is obvious, for reasons growing out
of the inherent differences in the two vehicles, that more is required from the former to fully discharge the duty than
from the latter.[29]

The Code Commission was cognizant of the difference in the natures and attached responsibilities of motorized and
non-motorized vehicles. Art. 2185 was not formulated to compel or ensure obeisance by all to traffic rules and
regulations. If such were indeed the evil sought to be remedied or guarded against, then the framers of the Code would
have expanded the provision to include non-motorized vehicles or for that matter, pedestrians. Yet, that was not the
case; thus the need arises to ascertain the peculiarities attaching to a motorized vehicle within the dynamics of road
travel. The fact that there has long existed a higher degree of diligence and care imposed on motorized vehicles, arising
from the special nature of motor vehicle, leads to the inescapable conclusion that the qualification under Article 2185
exists precisely to recognize such higher standard. Simply put, the standards applicable to motor vehicle are not on
equal footing with other types of vehicles.

Thus, we cannot sustain the contention that Art. 2185 should apply to non-motorized vehicles, even if by analogy.
There is factual and legal basis that necessitates the distinction under Art. 2185, and to adopt Aonuevos thesis would
unwisely obviate this distinction.

Even if the legal presumption under Article 2185 should not apply to Villagracia, this should not preclude any
possible finding of negligence on his part. While the legal argument as formulated by Aonuevo is erroneous, his core
contention that Villagracia was negligent for failure to comply with traffic regulations warrants serious consideration,
especially since the imputed negligent acts were admitted by Villagracia himself.

The Civil Code characterizes negligence as the omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, of the time and of the place. [30] However, the
existence of negligence in a given case is not determined by the personal judgment of the actor in a given situation,
but rather, it is the law which determines what would be reckless or negligent.[31]
 Aonuevo, asserts that Villagracia was negligent as the latter had transgressed a municipal ordinance requiring the
registration of bicycles and the installation of safety devices thereon. This view finds some support if anchored on the
long standing principle of negligence per se.

The generally accepted view is that the violation of a statutory duty constitutes negligence, negligence as a matter
of law, or negligence per se.[32] In Teague vs. Fernandez,[33] the Court cited with approval American authorities
elucidating on the rule:

The mere fact of violation of a statute is not sufficient basis for an inference that such violation was the proximate cause
of the injury complained. However, if the very injury has happened which was intended to be prevented by the statute,
it has been held that violation of the statute will be deemed to be the proximate cause of the injury. (65 C.J.S. 1156)

The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as a matter of law,
or, according to the decisions on the question, negligence per se, for the reason that non-observance of what the
legislature has prescribed as a suitable precaution is failure to observe that care which an ordinarily prudent man would
observe, and, when the state regards certain acts as so liable to injure others as to justify their absolute prohibition,
doing the forbidden act is a breach of duty with respect to those who may be injured thereby; or, as it has been
otherwise expressed, when the standard of care is fixed by law, failure to conform to such standard is negligence,
negligence per se or negligence in and of itself, in the absence of a legal excuse. According to this view it is immaterial,
where a statute has been violated, whether the act or omission constituting such violation would have been regarded
as negligence in the absence of any statute on the subject or whether there was, as a matter of fact, any reason to
anticipate that injury would result from such violation. x x x. (65 C.J.S. pp.623-628)

But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding the speed limit, for
example, we do not inquire whether his prohibited conduct was unreasonably dangerous. It is enough that it was
prohibited. Violation of an ordinance intended to promote safety is negligence. If by creating the hazard which the
ordinance was intended to avoid it brings about the harm which the ordinance was intended to prevent, it is a legal
cause of the harm. This comes only to saying that in such circumstances the law has no reason to ignore the causal
relation which obviously exists in fact. The law has excellent reason to recognize it, since it is the very relation which
the makers of the ordinance anticipated. This court has applied these principles to speed limits and other regulations of
the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

x x x However, the fact that other happenings causing or contributing toward an injury intervened between the violation
of a statute or ordinance and the injury does not necessarily make the result so remote that no action can be maintained.
The test is to be found not in the number of intervening events or agents, but in their character and in the natural and
probable connection between the wrong done and the injurious consequence. The general principle is that the violation
of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the
occurrence of the accident, in the manner in which it happened, was the very thing which the statute or ordinance was
intended to prevent. (38 Am Jur 841)[34]

In Teague, the owner of a vocational school stricken by a fire resulting in fatalities was found negligent, base on
her failure to provide adequate fire exits in contravention of a Manila city ordinance. [35] In F.F. Cruz and Co., Inc. v.
Court of Appeals[36], the failure of the petitioner to construct a firewall in accordance with city ordinances sufficed to
support a finding of negligence.[37] In Cipriano v. Court of Appeals, [38]the Court found that the failure of the petitioner
to register and insure his auto rustproofing shop in accordance with the statute constituted negligence per se, thus
holding him liable for the damages for the destruction by fire of a customers vehicle garaged therein.

Should the doctrine of negligence per se apply to Villagracia, resulting from his violation of an ordinance? It cannot
be denied that the statutory purpose for requiring bicycles to be equipped with headlights or horns is to promote road
safety and to minimize the occurrence of road accidents involving bicycles. At face value, Villagracias mishap was
precisely the danger sought to be guarded against by the ordinance he violated. Aonuevo argues that Villagracias
violation should bar the latters recovery of damages, and a simplistic interpretation of negligence per se might vindicate
such an argument.

But this is by no means a simple case. There is the fact which we consider as proven, that Aonuevo was speeding
as he made the left turn, and such negligent act was the proximate cause of the accident. This reckless behavior would
have imperiled anyone unlucky enough within the path of Aonuevos car as it turned into the intersection, whether they
are fellow motorists, pedestrians, or cyclists. We are hard put to conclude that Villagracia would have avoided injury
had his bicycle been up to par with safety regulations, especially considering that Aonuevo was already speeding as he
made the turn, or before he had seen Villagracia. Even assuming that Aonuevo had failed to see Villagracia because the
bicycle was not equipped with headlights, such lapse on the cyclists part would not have acquitted the driver of his duty
to slow down as he proceeded to make the left turn.

This court has appreciated that negligence per se, arising from the mere violation of a traffic statute, need not be
sufficient in itself in establishing liability for damages. In Sanitary Steam Laundry, Inc. v. Court of Appeals,[39] a collision
between a truck and a privately-owned Cimarron van caused the death of three of the vans passengers. The petitioner
therein, the owner of the truck, argued that the driver of the Cimarron was committing multiple violations of the Land
Transportation and Traffic Code[40] at the time of the accident. Among these violations: the Cimarron was overloaded
at the time of the accident; the front seat of the van was occupied by four adults, including the driver; and the van had
only one functioning headlight. Similar as in this case, petitioner therein invoked Article 2185 and argued that the driver
of the Cimarron should be presumed negligent. The Court, speaking through Justice Mendoza, dismissed these
arguments:

[It] has not been shown how the alleged negligence of the Cimarron driver contributed to the collision between the
vehicles. Indeed, petitioner has the burden of showing a causal connection between the injury received and the violation
of the Land Transportation and Traffic Code. He must show that the violation of the statute was the proximate or legal
cause of the injury or that it substantially contributed thereto. Negligence consisting in whole or in part, of violation of
law, like any other negligence, is without legal consequence unless it is a contributing cause of the injury. Petitioner
says that driving an overloaded vehicle with only one functioning headlight during nighttime certainly increases the risk
of accident, that because the Cimarron had only one headlight, there was decreased visibility, and that the fact that the
vehicle was overloaded and its front seat overcrowded decreased its maneuverability. However, mere allegations such
as these are not sufficient to discharge its burden of proving clearly that such alleged negligence was the contributing
cause of the injury.[41]

Sanitary Steam[42] is controlling in this case. The bare fact that Villagracia was violating a municipal ordinance at
the time of the accident may have sufficiently established some degree of negligence on his part, but such negligence
is without legal consequence unless it is shown that it was a contributing cause of the injury. If anything at all, it is but
indicative of Villagracias failure in fulfilling his obligation to the municipal government, which would then be the proper
party to initiate corrective action as a result. But such failure alone is not determinative of Villagracias negligence in
relation to the accident. Negligence is relative or comparative, dependent upon the situation of the parties and the
degree of care and vigilance which the particular circumstances reasonably require. [43] To determine if Villagracia was
negligent, it is not sufficient to rely solely on the violations of the municipal ordinance, but imperative to examine
Villagracias behavior in relation to the contemporaneous circumstances of the accident.

The rule on negligence per se must admit qualifications that may arise from the logical consequences of the facts
leading to the mishap. The doctrine (and Article 2185, for that matter) is undeniably useful as a judicial guide in
adjudging liability, for it seeks to impute culpability arising from the failure of the actor to perform up to a standard
established by a legal fiat. But the doctrine should not be rendered inflexible so as to deny relief when in fact there is
no causal relation between the statutory violation and the injury sustained. Presumptions in law, while convenient, are
not intractable so as to forbid rebuttal rooted in fact. After all, tort law is remunerative in spirit, aiming to provide
compensation for the harm suffered by those whose interests have been invaded owing to the conduct of others. [44]

Under American case law, the failures imputed on Villagracia are not grievous enough so as to negate monetary
relief. In the absence of statutory requirement, one is not negligent as a matter of law for failing to equip a horn, bell,
or other warning devise onto a bicycle.[45] In most cases, the absence of proper lights on a bicycle does not constitute
negligence as a matter of law[46] but is a question for the jury whether the absence of proper lights played a causal part
in producing a collision with a motorist.[47] The absence of proper lights on a bicycle at night, as required by statute or
ordinance, may constitute negligence barring or diminishing recovery if the bicyclist is struck by a motorist as long as
the absence of such lights was a proximate cause of the collision;[48] however, the absence of such lights will not preclude
or diminish recovery if the scene of the accident was well illuminated by street lights,[49] if substitute lights were present
which clearly rendered the bicyclist visible,[50] if the motorist saw the bicycle in spite of the absence of lights
thereon,[51] or if the motorist would have been unable to see the bicycle even if it had been equipped with lights.[52] A
bicycle equipped with defective or ineffective brakes may support a finding of negligence barring or diminishing recovery
by an injured bicyclist where such condition was a contributing cause of the accident.[53]

The above doctrines reveal a common thread. The failure of the bicycle owner to comply with accepted safety
practices, whether or not imposed by ordinance or statute, is not sufficient to negate or mitigate recovery unless a
causal connection is established between such failure and the injury sustained. The principle likewise finds affirmation
in Sanitary Steam, wherein we declared that the violation of a traffic statute must be shown as the proximate cause of
the injury, or that it substantially contributed thereto. [54]Aonuevo had the burden of clearly proving that the alleged
negligence of Villagracia was the proximate or contributory cause of the latters injury.

On this point, the findings of the Court of Appeals are well-worth citing:

[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a distance of about ten (10) meters before the
accident. Corrolarily, therefore, he could have avoided the accident had he [stopped] alongside with an earlier (sic) jeep
which was already at a full stop giving way to appellee. But according to [eyewitness] Sorsano, he saw appellant
Aonuevo umaarangkada and hit the leg of Villagracia (TSN March 14, 1990 p. 30). This earlier (sic) jeep at a full stop
gave way to Villagracia to proceed but Aonuevo at an unexpected motion (umarangkada) came out hitting Villagracia
(TSN March 9, 1990 p. 49). Appellant Aonuevo admitted that he did not blow his horn when he crossed Boni Avenue
(TSN March 21, 1990 p. 47).[55]

By Aonuevos own admission, he had seen Villagracia at a good distance of ten (10) meters. Had he been
decelerating, as he should, as he made the turn, Aonuevo would have had ample opportunity to avoid hitting Villagracia.
Moreover, the fact that Aonuevo had sighted Villagracia before the accident would negate any possibility that the absence
of lights on the bike contributed to the cause of the accident. [56] A motorist has been held liable for injury to or death
of a bicyclist where the motorist turned suddenly into the bicyclist so as to cause a collision. [57]

Neither does Aonuevo attempt before this Court to establish a causal connection between the safety violations
imputed to Villagracia and the accident itself. Instead, he relied on a putative presumption that these violations in
themselves sufficiently established negligence appreciable against Villagracia. Since the onus on Aonuevo is to
conclusively prove the link between the violations and the accident, we can deem him as having failed to discharge his
necessary burden of proving Villagracias own liability.

Neither can we can adjudge Villagracia with contributory negligence. The leading case in contributory
negligence, Rakes v. Atlantic Gulf[58] clarifies that damages may be mitigated if the claimant in conjunction with the
occurrence, [contributes] only to his injury.[59] To hold a person as having contributed to his injuries, it must be shown
that he performed an act that brought about his injuries in disregard of warnings or signs of an impending danger to
health and body.[60] To prove contributory negligence, it is still necessary to establish a causal link, although not
proximate, between the negligence of the party and the succeeding injury. In a legal sense, negligence is contributory
only when it contributes proximately to the injury, and not simply a condition for its occurrence. [61]

As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as solely responsible for the accident. The
petition does not demonstrate why this finding should be reversed. It is hard to imagine that the same result would not
have occurred even if Villagracias bicycle had been equipped with safety equipment. Aonuevo himself admitted having
seen Villagracia from ten (10) meters away, thus he could no longer claim not having been sufficiently warned either
by headlights or safety horns. The fact that Aonuevo was recklessly speeding as he made the turn likewise leads us to
believe that even if Villagracias bicycle had been equipped with the proper brakes, the cyclist would not have had
opportunity to brake in time to avoid the speeding car. Moreover, it was incumbent on Aonuevo to have established
that Villagracias failure to have installed the proper brakes contributed to his own injury. The fact that Aonuevo failed
to adduce proof to that effect leads us to consider such causal connection as not proven.
 All told, there is no reason to disturb the assailed judgment. WHEREFORE, the Petition is DENIED. The Decision of
the Court of Appeals is AFFIRMED. Costs against petitioner. SO ORDERED.
G.R. No. 142625 December 19, 2006

ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER ANTHONY, ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, all surnamed NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ,
DR. PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J. DUMLAO, respondents.

DECISION

CARPIO, J.:

The Case

This petition for review1 assails the 6 February 1998 Decision2 and 21 March 2000 Resolution3 of the Court of Appeals
in CA-G.R. CV No. 45641. The Court of Appeals affirmed in toto the 22 November 1993 Decision4 of the Regional Trial
Court of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death of his patient, Corazon
Nogales, while absolving the remaining respondents of any liability. The Court of Appeals denied petitioners' motion for
reconsideration.

The Facts

Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37 years old, was under the exclusive
prenatal care of Dr. Oscar Estrada ("Dr. Estrada") beginning on her fourth month of pregnancy or as early as December
1975. While Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and
development of leg edema5 indicating preeclampsia,6 which is a dangerous complication of pregnancy.7

Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and Rogelio Nogales
("Spouses Nogales") to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her immediate
admission to the Capitol Medical Center ("CMC").

On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written admission
request8 of Dr. Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales ("Rogelio") executed and signed the
"Consent on Admission and Agreement"9 and "Admission Agreement."10 Corazon was then brought to the labor room of
the CMC.

Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an internal examination of Corazon. Dr.
Uy then called up Dr. Estrada to notify him of her findings.

Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada ordered for 10 mg. of valium to be administered
immediately by intramuscular injection. Dr. Estrada later ordered the start of intravenous administration of syntocinon
admixed with dextrose, 5%, in lactated Ringers' solution, at the rate of eight to ten micro-drops per minute.

According to the Nurse's Observation Notes,12 Dr. Joel Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC, was
notified at 4:15 a.m. of Corazon's admission. Subsequently, when asked if he needed the services of an anesthesiologist,
Dr. Estrada refused. Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe Corazon's condition.

At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m., Corazon's bag of water
ruptured spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated. At 6:13 a.m., Corazon started to experience
convulsions.

At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate. However, Dr. Ely Villaflor ("Dr.
Villaflor"), who was assisting Dr. Estrada, administered only 2.5 grams of magnesium sulfate.

At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazon's baby. In the process, a 1.0
x 2.5 cm. piece of cervical tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak and injured condition.
Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and Dr. Payumo.

At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became profuse. Corazon's blood
pressure dropped from 130/80 to 60/40 within five minutes. There was continuous profuse vaginal bleeding. The
assisting nurse administered hemacel through a gauge 19 needle as a side drip to the ongoing intravenous injection of
dextrose.

At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It took approximately 30 minutes
for the CMC laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to comply with Dr. Estrada's order and deliver
the blood.

At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-Gynecology Department of the CMC, was apprised
of Corazon's condition by telephone. Upon being informed that Corazon was bleeding profusely, Dr. Espinola ordered
immediate hysterectomy. Rogelio was made to sign a "Consent to Operation."13

Due to the inclement weather then, Dr. Espinola, who was fetched from his residence by an ambulance, arrived at the
CMC about an hour later or at 9:00 a.m. He examined the patient and ordered some resuscitative measures to be
administered. Despite Dr. Espinola's efforts, Corazon died at 9:15 a.m. The cause of death was "hemorrhage, post
partum."14
On 14 May 1980, petitioners filed a complaint for damages 15 with the Regional Trial Court16 of Manila against CMC, Dr.
Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of
Corazon. Petitioners mainly contended that defendant physicians and CMC personnel were negligent in the treatment
and management of Corazon's condition. Petitioners charged CMC with negligence in the selection and supervision of
defendant physicians and hospital staff.

For failing to file their answer to the complaint despite service of summons, the trial court declared Dr. Estrada, Dr.
Enriquez, and Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective
answers denying and opposing the allegations in the complaint. Subsequently, trial ensued.

After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada solely
liable for damages. The trial court ruled as follows:

The victim was under his pre-natal care, apparently, his fault began from his incorrect and inadequate
management and lack of treatment of the pre-eclamptic condition of his patient. It is not disputed that he
misapplied the forceps in causing the delivery because it resulted in a large cervical tear which had caused the
profuse bleeding which he also failed to control with the application of inadequate injection of magnesium sulfate
by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous administration by nurse Dumlao
of hemacel by way of side drip, instead of direct intravenous injection, and his failure to consult a senior
obstetrician at an early stage of the problem.

On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J.
Dumlao and CMC, the Court finds no legal justification to find them civilly liable.

On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal physician of Corazon
Nogales. She can only make suggestions in the manner the patient maybe treated but she cannot impose her
will as to do so would be to substitute her good judgment to that of Dr. Estrada. If she failed to correctly
diagnose the true cause of the bleeding which in this case appears to be a cervical laceration, it cannot be safely
concluded by the Court that Dra. Villaflor had the correct diagnosis and she failed to inform Dr. Estrada. No
evidence was introduced to show that indeed Dra. Villaflor had discovered that there was laceration at the
cervical area of the patient's internal organ.

On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip, she
did it on her own. If the correct procedure was directly thru the veins, it could only be because this was what
was probably the orders of Dr. Estrada.

While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department of
Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he was able
to reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give prescription in the manner
Corazon Nogales may be treated, the prescription was based on the information given to him by phone and he
acted on the basis of facts as presented to him, believing in good faith that such is the correct remedy. He was
not with Dr. Estrada when the patient was brought to the hospital at 2:30 o'clock a.m. So, whatever errors that
Dr. Estrada committed on the patient before 9:00 o'clock a.m. are certainly the errors of Dr. Estrada and cannot
be the mistake of Dr. Noe Espinola. His failure to come to the hospital on time was due to fortuitous event.

On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not incumbent upon him to call
the attention of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged errors committed by them.
Besides, as anesthesiologist, he has no authority to control the actuations of Dr. Estrada and Dra. Villaflor. For
the Court to assume that there were errors being committed in the presence of Dr. Enriquez would be to dwell
on conjectures and speculations.

On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the blood bank of the CMC.
The Court cannot accept the theory of the plaintiffs that there was delay in delivering the blood needed by the
patient. It was testified, that in order that this blood will be made available, a laboratory test has to be conducted
to determine the type of blood, cross matching and other matters consistent with medical science so, the lapse
of 30 minutes maybe considered a reasonable time to do all of these things, and not a delay as the plaintiffs
would want the Court to believe.

Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She was sued because of her
alleged failure to notice the incompetence and negligence of Dr. Estrada. However, there is no evidence to
support such theory. No evidence was adduced to show that Dra. Rosa Uy as a resident physician of Capitol
Medical Center, had knowledge of the mismanagement of the patient Corazon Nogales, and that notwithstanding
such knowledge, she tolerated the same to happen.

In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any hand or participation in
the selection or hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending physician[s] of the deceased.
In other words, the two (2) doctors were not employees of the hospital and therefore the hospital did not have
control over their professional conduct. When Mrs. Nogales was brought to the hospital, it was an emergency
case and defendant CMC had no choice but to admit her. Such being the case, there is therefore no legal ground
to apply the provisions of Article 2176 and 2180 of the New Civil Code referring to the vicarious liability of an
employer for the negligence of its employees. If ever in this case there is fault or negligence in the treatment
of the deceased on the part of the attending physicians who were employed by the family of the deceased, such
civil liability should be borne by the attending physicians under the principle of "respondeat superior".

WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr. Estrada of Number 13
Pitimini St. San Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1) By way of actual damages in
the amount of P105,000.00; 2) By way of moral damages in the amount of P700,000.00; 3) Attorney's fees in
the amount of P100,000.00 and to pay the costs of suit.
 For failure of the plaintiffs to adduce evidence to support its [sic] allegations against the other defendants, the
complaint is hereby ordered dismissed. While the Court looks with disfavor the filing of the present complaint
against the other defendants by the herein plaintiffs, as in a way it has caused them personal inconvenience
and slight damage on their name and reputation, the Court cannot accepts [sic] however, the theory of the
remaining defendants that plaintiffs were motivated in bad faith in the filing of this complaint. For this reason
defendants' counterclaims are hereby ordered dismissed.

SO ORDERED.18

Petitioners appealed the trial court's decision. Petitioners claimed that aside from Dr. Estrada, the remaining respondents
should be held equally liable for negligence. Petitioners pointed out the extent of each respondent's alleged liability.

On 6 February 1998, the Court of Appeals affirmed the decision of the trial court.19 Petitioners filed a motion for
reconsideration which the Court of Appeals denied in its Resolution of 21 March 2000. 20

Hence, this petition.

Meanwhile, petitioners filed a Manifestation dated 12 April 2002 21 stating that respondents Dr. Estrada, Dr. Enriquez,
Dr. Villaflor, and Nurse Dumlao "need no longer be notified of the petition because they are absolutely not involved in
the issue raised before the [Court], regarding the liability of [CMC]." 22 Petitioners stressed that the subject matter of
this petition is the liability of CMC for the negligence of Dr. Estrada.23

The Court issued a Resolution dated 9 September 2002 24 dispensing with the requirement to submit the correct and
present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with
the filing of petitioners' Manifestation, it should be understood that they are claiming only against respondents CMC, Dr.
Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments. Petitioners are foregoing further claims
against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.

The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of the
Regional Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial court's judgment, is already
final as against Dr. Oscar Estrada.

Petitioners filed a motion for reconsideration25 of the Court's 9 September 2002 Resolution claiming that Dr. Enriquez,
Dr. Villaflor and Nurse Dumlao were notified of the petition at their counsels' last known addresses. Petitioners reiterated
their imputation of negligence on these respondents. The Court denied petitioners' Motion for Reconsideration in its 18
February 2004 Resolution.26

The Court of Appeals' Ruling

In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's ruling. The Court of Appeals rejected
petitioners' view that the doctrine in Darling v. Charleston Community Memorial Hospital27 applies to this case. According
to the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is an independent contractor-
physician whereas the Darling case involved a physician and a nurse who were employees of the hospital.

Citing other American cases, the Court of Appeals further held that the mere fact that a hospital permitted a physician
to practice medicine and use its facilities is not sufficient to render the hospital liable for the physician's negligence. 28 A
hospital is not responsible for the negligence of a physician who is an independent contractor.29

The Court of Appeals found the cases of Davidson v. Conole30 and Campbell v. Emma Laing Stevens Hospital31applicable
to this case. Quoting Campbell, the Court of Appeals stated that where there is no proof that defendant physician was
an employee of defendant hospital or that defendant hospital had reason to know that any acts of malpractice would
take place, defendant hospital could not be held liable for its failure to intervene in the relationship of physician-patient
between defendant physician and plaintiff.

On the liability of the other respondents, the Court of Appeals applied the "borrowed servant" doctrine considering that
Dr. Estrada was an independent contractor who was merely exercising hospital privileges. This doctrine provides that
once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating
room personnel, and any negligence associated with such acts or omissions, are imputable to the surgeon. 32 While the
assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the
temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed
upon the surgeon for their negligent acts under the doctrine of respondeat superior.33

The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending physician of his wife, any
liability for malpractice must be Dr. Estrada's sole responsibility.

While it found the amount of damages fair and reasonable, the Court of Appeals held that no interest could be
imposed on unliquidated claims or damages.

The Issue

Basically, the issue in this case is whether CMC is vicariously liable for the negligence of Dr. Estrada. The resolution of
this issue rests, on the other hand, on the ascertainment of the relationship between Dr. Estrada and CMC. The Court
also believes that a determination of the extent of liability of the other respondents is inevitable to finally and completely
dispose of the present controversy.
 The Ruling of the Court

The petition is partly meritorious.

On the Liability of CMC

Dr. Estrada's negligence in handling the treatment and management of Corazon's condition which ultimately resulted in
Corazon's death is no longer in issue. Dr. Estrada did not appeal the decision of the Court of Appeals which affirmed the
ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the finding of the trial court on Dr.
Estrada's negligence is already final.

Petitioners maintain that CMC is vicariously liable for Dr. Estrada's negligence based on Article 2180 in relation to Article
2176 of the Civil Code. These provisions pertinently state:

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee, servant,
or agent, may be held liable for the physician's negligence under the doctrine of respondeat superior.34

In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at CMC, should
be liable for Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada as an accredited physician of CMC,
though he discovered later that Dr. Estrada was not a salaried employee of the CMC. 35 Rogelio further claims that he
was dealing with CMC, whose primary concern was the treatment and management of his wife's condition. Dr. Estrada
just happened to be the specific person he talked to representing CMC.36 Moreover, the fact that CMC made Rogelio
sign a Consent on Admission and Admission Agreement37 and a Consent to Operation printed on the letterhead of CMC
indicates that CMC considered Dr. Estrada as a member of its medical staff.

On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting physician and that it admitted
Corazon because her physical condition then was classified an emergency obstetrics case. 38

CMC alleges that Dr. Estrada is an independent contractor "for whose actuations CMC would be a total stranger." CMC
maintains that it had no control or supervision over Dr. Estrada in the exercise of his medical profession.

The Court had the occasion to determine the relationship between a hospital and a consultant or visiting physician and
the liability of such hospital for that physician's negligence in Ramos v. Court of Appeals,39 to wit:

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital administration or by a review committee set
up by the hospital who either accept or reject the application. This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain
a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the
physician's performance as a specialist is generally evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss
in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or
its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant"
staff. While "consultants" are not, technically employees, a point which respondent hospital asserts
in denying all responsibility for the patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether such a relationship
in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that
for the purpose of allocating responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians.This being
 the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent
doctors for petitioner's condition.

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article
2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of
others based on the former's responsibility under a relationship of patria potestas. x x x40 (Emphasis supplied)

While the Court in Ramos did not expound on the control test, such test essentially determines whether an employment
relationship exists between a physician and a hospital based on the exercise of control over the physician as to details.
Specifically, the employer (or the hospital) must have the right to control both the means and the details of the process
by which the employee (or the physician) is to accomplish his task.41

After a thorough examination of the voluminous records of this case, the Court finds no single evidence pointing to
CMC's exercise of control over Dr. Estrada's treatment and management of Corazon's condition. It is undisputed that
throughout Corazon's pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of Corazon's
admission at CMC and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon. There
was no showing that CMC had a part in diagnosing Corazon's condition. While Dr. Estrada enjoyed staff privileges at
CMC, such fact alone did not make him an employee of CMC.42 CMC merely allowed Dr. Estrada to use its facilities43 when
Corazon was about to give birth, which CMC considered an emergency. Considering these circumstances, Dr. Estrada is
not an employee of CMC, but an independent contractor.

The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent
contractor-physician.

In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an
exception to this principle. The hospital may be liable if the physician is the "ostensible" agent of the hospital.44 This
exception is also known as the "doctrine of apparent authority."45 In Gilbert v. Sycamore Municipal Hospital,46 the Illinois
Supreme Court explained the doctrine of apparent authority in this wise:

[U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts of a
physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless
the patient knows, or should have known, that the physician is an independent contractor. The elements of the
action have been set out as follows:

"For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital,
or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was
alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the
appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in
them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary
care and prudence."

The element of "holding out" on the part of the hospital does not require an express representation by the
hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital
holds itself out as a provider of emergency room care without informing the patient that the care is provided by
independent contractors.

The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital
to provide complete emergency room care, rather than upon a specific physician.

The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-contractor
physician.

The first factor focuses on the hospital's manifestations and is sometimes described as an inquiry whether the hospital
acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent
was an employee or agent of the hospital.47 In this regard, the hospital need not make express representations
to the patient that the treating physician is an employee of the hospital; rather a representation may be
general and implied.48

The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of the Civil Code provides that
"[t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be
denied or disproved as against the person relying thereon." Estoppel rests on this rule: "Whenever a party has, by his
own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act
upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it." 49

In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMC's acts, CMC
clothed Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an
employee or agent of CMC. CMC cannot now repudiate such authority.

First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada. Upon Dr.
Estrada's request for Corazon's admission, CMC, through its personnel, readily accommodated Corazon and updated Dr.
Estrada of her condition.

Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazon's admission and supposed
hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelio's belief that Dr. Estrada
was a member of CMC's medical staff.50 The Consent on Admission and Agreement explicitly provides:

KNOW ALL MEN BY THESE PRESENTS:

 I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon, and representing
his/her family, of my own volition and free will, do consent and submit said Ma. Corazon to Dr. Oscar Estrada
(hereinafter referred to as Physician) for cure, treatment, retreatment, or emergency measures, that the
Physician, personally or by and through the Capitol Medical Center and/or its staff, may use, adapt,
or employ such means, forms or methods of cure, treatment, retreatment, or emergency measures
as he may see best and most expedient; that Ma. Corazon and I will comply with any and all rules,
regulations, directions, and instructions of the Physician, the Capitol Medical Center and/or its staff;
and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Physician,
the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from
directly or indirectly, or by reason of said cure, treatment, or retreatment, or emergency measures or
intervention of said physician, the Capitol Medical Center and/or its staff.

x x x x51 (Emphasis supplied)

While the Consent to Operation pertinently reads, thus:

I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit said CORAZON NOGALES
to Hysterectomy, by the Surgical Staff and Anesthesiologists of Capitol Medical Center and/or whatever
succeeding operations, treatment, or emergency measures as may be necessary and most expedient; and, that
I will not hold liable or responsible and hereby waive and forever discharge and hold free the Surgeon, his
assistants, anesthesiologists, the Capitol Medical Center and/or its staff, from any and all claims of whatever
kind of nature, arising from directly or indirectly, or by reason of said operation or operations, treatment, or
emergency measures, or intervention of the Surgeon, his assistants, anesthesiologists, the Capitol Medical
Center and/or its staff.52 (Emphasis supplied)

Without any indication in these consent forms that Dr. Estrada was an independent contractor-physician, the Spouses
Nogales could not have known that Dr. Estrada was an independent contractor. Significantly, no one from CMC informed
the Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio, who was then a
member of CMC Board of Directors, testified that Dr. Estrada was part of CMC's surgical staff. 53

Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr. Espinola, who was then the Head of the
Obstetrics and Gynecology Department of CMC, gave the impression that Dr. Estrada as a member of CMC's medical
staff was collaborating with other CMC-employed specialists in treating Corazon.

The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on whether the plaintiff
acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.54

The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Dr.
Estrada's services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle Corazon's delivery not
only because of their friend's recommendation, but more importantly because of Dr. Estrada's "connection with a
reputable hospital, the [CMC]."55 In other words, Dr. Estrada's relationship with CMC played a significant role in the
Spouses Nogales' decision in accepting Dr. Estrada's services as the obstetrician-gynecologist for Corazon's delivery.
Moreover, as earlier stated, there is no showing that before and during Corazon's confinement at CMC, the Spouses
Nogales knew or should have known that Dr. Estrada was not an employee of CMC.

Further, the Spouses Nogales looked to CMC to provide the best medical care and support services for Corazon's delivery.
The Court notes that prior to Corazon's fourth pregnancy, she used to give birth inside a clinic. Considering Corazon's
age then, the Spouses Nogales decided to have their fourth child delivered at CMC, which Rogelio regarded one of the
best hospitals at the time.56 This is precisely because the Spouses Nogales feared that Corazon might experience
complications during her delivery which would be better addressed and treated in a modern and big hospital such as
CMC. Moreover, Rogelio's consent in Corazon's hysterectomy to be performed by a different physician, namely Dr.
Espinola, is a clear indication of Rogelio's confidence in CMC's surgical staff.

CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable. The Court cannot close its eyes to
the reality that hospitals, such as CMC, are in the business of treatment. In this regard, the Court agrees with the
observation made by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc., 57 to wit:

"The conception that the hospital does not undertake to treat the patient, does not undertake to act through its
doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no
longer reflects the fact. Present day hospitals, as their manner of operation plainly demonstrates, do
far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff
of physicians, nurses and internes [sic], as well as administrative and manual workers, and they
charge patients for medical care and treatment, collecting for such services, if necessary, by legal
action. Certainly, the person who avails himself of 'hospital facilities' expects that the hospital will
attempt to cure him, not that its nurses or other employees will act on their own responsibility." x x
x (Emphasis supplied)

Likewise unconvincing is CMC's argument that petitioners are estopped from claiming damages based on the Consent
on Admission and Consent to Operation. Both release forms consist of two parts. The first part gave CMC permission to
administer to Corazon any form of recognized medical treatment which the CMC medical staff deemed advisable. The
second part of the documents, which may properly be described as the releasing part, releases CMC and its employees
"from any and all claims" arising from or by reason of the treatment and operation.

The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment
or operation. Neither do the consent forms expressly exempt CMC from liability for Corazon's death due to negligence
during such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed
strictly against hospitals. Besides, a blanket release in favor of hospitals "from any and all claims," which includes claims
due to bad faith or gross negligence, would be contrary to public policy and thus void.

Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only mitigate
liability depending on the circumstances.58 When a person needing urgent medical attention rushes to a hospital, he
cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at
the mercy of the hospital. There can be no clearer example of a contract of adhesion than one arising from such a dire
situation. Thus, the release forms of CMC cannot relieve CMC from liability for the negligent medical treatment of
Corazon.

On the Liability of the Other Respondents

Despite this Court's pronouncement in its 9 September 2002 59 Resolution that the filing of petitioners' Manifestation
confined petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the
Court deems it proper to resolve the individual liability of the remaining respondents to put an end finally to this more
than two-decade old controversy.

a) Dr. Ely Villaflor

Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazon's bleeding and to suggest the correct
remedy to Dr. Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to correct the error of Nurse Dumlao in the
administration of hemacel.

The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate. However, this
was after informing Dr. Estrada that Corazon was no longer in convulsion and that her blood pressure went down to a
dangerous level.61 At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of magnesium sulfate from
10 to 2.5 grams. Since petitioners did not dispute Dr. Villaflor's allegation, Dr. Villaflor's defense remains uncontroverted.
Dr. Villaflor's act of administering a lower dosage of magnesium sulfate was not out of her own volition or was in
contravention of Dr. Estrada's order.

b) Dr. Rosa Uy

Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the attention of Dr. Estrada on the incorrect dosage
of magnesium sulfate administered by Dr. Villaflor; (2) to take corrective measures; and (3) to correct Nurse Dumlao's
wrong method of hemacel administration.

The Court believes Dr. Uy's claim that as a second year resident physician then at CMC, she was merely authorized to
take the clinical history and physical examination of Corazon. 62 However, that routine internal examination did not ipso
facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further, petitioners' imputation of negligence rests on
their baseless assumption that Dr. Uy was present at the delivery room. Nothing shows that Dr. Uy participated in
delivering Corazon's baby. Further, it is unexpected from Dr. Uy, a mere resident physician at that time, to call the
attention of a more experienced specialist, if ever she was present at the delivery room.

c) Dr. Joel Enriquez

Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about
their errors.63 Petitioners insist that Dr. Enriquez should have taken, or at least suggested, corrective measures to rectify
such errors.

The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of expertise is definitely not obstetrics and
gynecology. As such, Dr. Enriquez was not expected to correct Dr. Estrada's errors. Besides, there was no evidence of
Dr. Enriquez's knowledge of any error committed by Dr. Estrada and his failure to act upon such observation.

d) Dr. Perpetua Lacson

Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood Corazon needed. 64 Petitioners claim
that Dr. Lacson was remiss in her duty of supervising the blood bank staff.

As found by the trial court, there was no unreasonable delay in the delivery of blood from the time of the request until
the transfusion to Corazon. Dr. Lacson competently explained the procedure before blood could be given to the
patient.65 Taking into account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it would take
approximately 45-60 minutes before blood could be ready for transfusion.66 Further, no evidence exists that Dr. Lacson
neglected her duties as head of the blood bank.

e) Dr. Noe Espinola

Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy without determining the underlying
cause of Corazon's bleeding. Dr. Espinola should have first considered the possibility of cervical injury, and advised a
thorough examination of the cervix, instead of believing outright Dr. Estrada's diagnosis that the cause of bleeding was
uterine atony.

Dr. Espinola's order to do hysterectomy which was based on the information he received by phone is not negligence.
The Court agrees with the trial court's observation that Dr. Espinola, upon hearing such information about Corazon's
condition, believed in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy did not push
through because upon Dr. Espinola's arrival, it was already too late. At the time, Corazon was practically dead.
f) Nurse J. Dumlao

In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth Circuit, held that to recover, a patient complaining
of injuries allegedly resulting when the nurse negligently injected medicine to him intravenously instead of
intramuscularly had to show that (1) an intravenous injection constituted a lack of reasonable and ordinary care; (2)
the nurse injected medicine intravenously; and (3) such injection was the proximate cause of his injury.

In the present case, there is no evidence of Nurse Dumlao's alleged failure to follow Dr. Estrada's specific instructions.
Even assuming Nurse Dumlao defied Dr. Estrada's order, there is no showing that side-drip administration of hemacel
proximately caused Corazon's death. No evidence linking Corazon's death and the alleged wrongful hemacel
administration was introduced. Therefore, there is no basis to hold Nurse Dumlao liable for negligence.

On the Award of Interest on Damages

The award of interest on damages is proper and allowed under Article 2211 of the Civil Code, which states that in crimes
and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court. 68

WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical Center vicariously
liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages and P700,000 as moral
damages should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the
judgment of the trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21
March 2000 of the Court of Appeals in CA-G.R. CV No. 45641. SO ORDERED.
 DR. MILAGROS L. CANTRE, G.R. No. 160889
Petitioner,

- versus

SPS. JOHN DAVID Z. GO and NORA S. GO, Promulgated:

Respondents.
April 27, 2007
x------------------------------------------------x

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision[1] dated October 3, 2002 and Resolution[2] dated November 19, 2003

of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with modification the Decision[3] dated March 3, 1997

of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562.

The facts, culled from the records, are as follows:

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial

Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19,

1992.

At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m.,

Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled

from her womb after delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop in her blood pressure

to 40 over 0. Petitioner and the assisting resident physician performed various medical procedures to stop the bleeding

and to restore Noras blood pressure. Her blood pressure was frequently monitored with the use of a

sphygmomanometer. While petitioner was massaging Noras uterus for it to contract and stop bleeding, she ordered a

droplight to warm Nora and her baby.[4] Nora remained unconscious until she recovered.

While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and

a half (2 ) by three and a half (3 ) inches in the inner portion of her left arm, close to the armpit.[5] He asked the nurses

what caused the injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed a request for

investigation.[6] In response, Dr. Rainerio S. Abad, the medical director of the hospital, called petitioner and the

assisting resident physician to explain what happened. Petitioner said the blood pressure cuff caused the injury.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination,

which was conducted by medico-legal officer Dr. Floresto Arizala, Jr.[7] The medico-legal officer later testified that Noras

injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes could cause such

burn.[8] He dismissed the likelihood that the wound was caused by a blood pressure cuff as the scar was not around the

arm, but just on one side of the arm.[9]

On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital for

skin grafting.[10] Her wound was covered with skin sourced from her abdomen, which consequently bore a scar as well.

About a year after, on April 30, 1993, scar revision had to be performed at the same hospital.[11] The surgical operation

left a healed linear scar in Noras left arm about three inches in length, the thickest portion rising about one-fourth (1/4)

of an inch from the surface of the skin. The costs of the skin grafting and the scar revision were shouldered by the

hospital.[12]

Unfortunately, Noras arm would never be the same. Aside from the unsightly mark, the pain in her left arm

remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children

cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest
touch.
 Thus, on June 21, 1993, respondent spouses filed a complaint[13] for damages against petitioner, Dr. Abad, and

the hospital. Finding in favor of respondent spouses, the trial court decreed:

In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs
and against the defendants, directing the latters, (sic) jointly and severally

(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary
damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.

SO ORDERED.[14]

Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with modification the

trial court decision, thus:

WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision
dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q-93-
16562, the same is hereby AFFIRMED, with the following MODIFICATIONS:

1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-

appellees John David Go and Nora S. Go the sum of P200,000.00 as moral damages;

2. Deleting the award [of] exemplary damages, attorneys fees and expenses of
litigation;

3. Dismissing the complaint with respect to defendants-appellants

Dr. Rainerio S. Abad and Delgado Clinic, Inc.;

4. Dismissing the counterclaims of defendants-appellants for lack of merit; and

5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.

SO ORDERED.[15]

Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition assigning

the following as errors and issues:

I.

WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR
RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS FURTHER OFFERED BY
RESPONDENTS NOT TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS
UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

II.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN,
CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT THE
PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE BODY OF MRS.
NORA GO, AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

III.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN,
CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT
PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY (BLISTERS) IN THE
LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT;

IV.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN IT
MADE A RULING ON THE RESPONDENTS INJURY QUOTING THE TESTIMONY OF SOMEONE WHO WAS
NOT PRESENT AND HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA GO;

V.
 WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED THAT
PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF
RESPONDENT MRS. GO;

VI.

WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED
THAT THE RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF;

VII.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY
TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE
THE SCARS EVEN MORE UGLY AND DECLARED THE COSMETIC SURGERY A FAILURE;

VIII.

WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO
RESPONDENTS CONTRARY TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY
ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF
APPEALS LIKEWISE ABUSING ITS DISCRETION.[16]

Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in

evidence because they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists

the droplight could not have touched Noras body. She maintains the injury was due to the constant taking of Noras

blood pressure. Petitioner also insinuates the Court of Appeals was misled by the testimony of the medico-legal officer

who never saw the original injury before plastic surgery was performed. Finally, petitioner stresses that plastic surgery

was not intended to restore respondents injury to its original state but rather to prevent further complication.

Respondents, however, counter that the genuineness and due execution of the additional documentary exhibits

were duly admitted by petitioners counsel. Respondents point out that petitioners blood pressure cuff theory is highly

improbable, being unprecedented in medical history and that the injury was definitely caused by the droplight. At any

rate, they argue, even if the injury was brought about by the blood pressure cuff, petitioner was still negligent in her

duties as Noras attending physician.

Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits admissible in

evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go? Thereafter, the inquiry is whether the

appellate court committed grave abuse of discretion in its assailed issuances.

As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in evidence. We note

that the questioned exhibits consist mostly of Noras medical records, which were produced by the hospital during trial

pursuant to a subpoena duces tecum. Petitioners counsel admitted the existence of the same when they were formally

offered for admission by the trial court. In any case, given the particular circumstances of this case, a ruling on the

negligence of petitioner may be made based on the res ipsa loquitur doctrine even in the absence of such additional

exhibits.

Petitioners contention that the medico-legal officer who conducted Noras physical examination never saw her

original injury before plastic surgery was performed is without basis and contradicted by the records. Records show that

the medico-legal officer conducted the physical examination on May 7, 1992, while the skin grafting and the scar revision

were performed on Nora on May 22, 1992 and April 30, 1993, respectively.

Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora Go?

The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their patients. If
a doctor fails to live up to this precept, he is accountable for his acts. This notwithstanding, courts face a unique restraint
in adjudicating medical negligence cases because physicians are not guarantors of care and, they never set out to
intentionally cause injury to their patients. However, intent is immaterial in negligence cases because where negligence
exists and is proven, it automatically gives the injured a right to reparation for the damage caused.[17]

In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to

justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided

that the following requisites concur:

1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. [18]

As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary occurrence in the act

of delivering a baby, far removed as the arm is from the organs involved in the process of giving birth. Such injury could

not have happened unless negligence had set in somewhere.

Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both

instruments are deemed within the exclusive control of the physician in charge under the captain of the ship

doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the

time when those assistants are under the surgeons control.[19] In this particular case, it can be logically inferred that

petitioner, the senior consultant in charge during the delivery of Noras baby, exercised control over the assistants

assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and

the blood pressure cuff is also within petitioners exclusive control.

Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could only be

caused by something external to her and outside her control as she was unconscious while in hypovolemic shock. Hence,
Nora could not, by any stretch of the imagination, have contributed to her own injury.

Petitioners defense that Noras wound was caused not by the droplight but by the constant taking of her blood

pressure, even if the latter was necessary given her condition, does not absolve her from liability. As testified to by the

medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff immediately after each

use. Otherwise, the inflated band can cause injury to the patient similar to what could have happened in this case. Thus,

if Noras wound was caused by the blood pressure cuff, then the taking of Noras blood pressure must have been done

so negligently as to have inflicted a gaping wound on her arm,[20] for which petitioner cannot escape liability under the

captain of the ship doctrine.

Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic procedure, but

rather as a measure to prevent complication does not help her case. It does not negate negligence on her part.

Based on the foregoing, the presumption that petitioner was negligent in the exercise of her profession

stands unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they are the proximate result
of the defendants wrongful act or omission.

Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a proximate

result of petitioners negligence.

 We note, however, that petitioner has served well as Noras obstetrician for her past three successful deliveries.

This is the first time petitioner is being held liable for damages due to negligence in the practice of her profession. The

fact that petitioner promptly took care of Noras wound before infection and other complications set in is also indicative

of petitioners good intentions. We also take note of the fact that Nora was suffering from a critical condition when the

injury happened, such that saving her life became petitioners elemental concern. Nonetheless, it should be stressed

that all these could not justify negligence on the part of petitioner.

Hence, considering the specific circumstances in the instant case, we find no grave abuse of discretion in the

assailed decision and resolution of the Court of Appeals. Further, we rule that the Court of Appeals award of Two Hundred

Thousand Pesos (P200,000) as moral damages in favor of respondents and against petitioner is just and equitable.[21]

WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated November

19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED. No pronouncement as to costs. SO

ORDERED.
 CONCEPCION ILAO-ORETA, G.R. No. 172406
Petitioner,

Promulgated:
October 11, 2007
- versus -

SPOUSES EVA MARIE and BENEDICTO NOEL

RONQUILLO,
Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto

(Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been blessed with a child despite several years of

marriage. They thus consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-

consultant at the St. Lukes Medical Center where she was, at the time material to the case, the chief of the Reproductive

Endocrinology and Infertility Section.

Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure whereby

a laparascope would be inserted through the patients abdominal wall to get a direct view of her internal reproductive

organ in order to determine the real cause of her infertility.

The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-Oreta. At around 7:00

a.m. of said date, Eva Marie, accompanied by her husband Noel, checked in at the St. Lukes Medical Center and

underwent pre-operative procedures including the administration of intravenous fluid and enema.

Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior notice of its
cancellation was received. It turned out that the doctor was on a return flight from Hawaii to, and arrived at 10:00
p.m. of April 5, 1999 in, Manila.

On May 18, 1999, the Ronquillo spouses filed a complaint [1] against Dr. Ilao-Oreta and the St.

Lukes Medical Center for breach of professional and service contract and for damages before the Regional Trial Court

(RTC) of Batangas City. They prayed for the award of actual damages including alleged loss of income of Noel while

accompanying his wife to the hospital, moral damages, exemplary damages, the costs of litigation, attorneys fees, and

other available reliefs and remedies.[2]

In her Answer,[3] Dr. Ilao-Oreta gave her side of the case as follows: She went on a honeymoon to Hawaii and

was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip from Hawaii to Manila would

take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she estimated that she would arrive

in Manila in the early morning of April 5, 1999. She thus believed in utmost good faith that she would be back

in Manila in time for the scheduled conduct of the laparoscopic procedure. She failed to consider the time difference

between Hawaii and the Philippines, however.

In its Answer,[4] the St. Lukes Medical Center contended that the spouses have no cause of action against it

since it performed the pre-operative procedures without delay, and any cause of action they have would be against

Dr. Ilao-Oreta.

By Decision[5] of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the doctor to arrive

on time was not intentional, awarded Eva Marie only actual damages in the total amount of P9,939 and costs of suit. It

found no adequate proof that Noel had been deprived of any job contract while attending to his wife in the hospital.
 On appeal by the spouses, the Court of Appeals, by Decision[6] of April 21, 2006, finding Dr. Ilao-

Oreta grossly negligent,[7] modified the trial courts decision as follows:

WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject to the
modification that the amount of actual damages, for which both defendants-appellees are jointly and
severally liable to plaintiffs-appellants, is increased to P16,069.40. Furthermore, defendant-appellee Dr.
Ilao-Oreta is also held liable to pay plaintiff-appellants the following:

(a) P50,000.00 as moral damages;

(b) P25,000.00 as exemplary damages; and

(c) P20,000.00 as attorneys fees.

SO ORDERED.[8] (Underscoring supplied)

Hence, the present Petition for Review[9] of Dr. Ilao-Oreta raising the following arguments:

THE COURT A QUO ERRED IN FINDING PETITIONER TO HAVE ACTED WITH GROSS NEGLIGENCE
AND AWARDING MORAL DAMAGES TO RESPONDENTS.[10]

THE COURT A QUO ERRED IN AWARDING EXEMPLARY DAMAGES TO RESPONDENTS.[11]

THE COURT A QUO [ERRED] IN AWARDING ATTORNEYS FEES TO RESPONDENTS.[12]

THE COURT A QUO ERRED IN INCREASING THE AWARD OF ACTUAL DAMAGES IN FAVOR OF
RESPONDENTS.[13]

Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence

of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. [14] It is

characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not

inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may
be affected.[15]

The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her secretary for

one of the spouses to pick up, apprised Eva Marie of the necessary preparations for the procedure, and instructed the

hospital staff to perform pre-operative treatments.[16] These acts of the doctor reflect an earnest intention to perform

the procedure on the day and time scheduled.

The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-Oreta, upon arrival

in Manila, immediately sought to rectify the same, thus:

[ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation?

[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I was to leave
Hawaii on April 4 at around 4:00 oclock in the afternoon, so I was computing 12 hours of travel
including stop-over, then probably I would be in Manila early morning of April 5, then I have so
much time and I can easily do the case at 2:00 oclock, you know it skipped my mind the change
in time.

Q: So when you arrived at 10:00 [PM] in Manila, what did you do?

A: I called immediately the hospital and I talked with the nurses, I asked about the patient, Mrs.
Ronquillo, and they told me that she has already left at around 7:00.

Q: And after calling the hospital, what happened?

A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the morning I went to
my office early at 8:00 and looked for her chart, because her telephone number was written in
the chart. So, I called them right away.

Q: Were you able to contact them?

A: I was able to reach Mr. Ronquillo.

 Q: In the course of your conversation, what did you tell Mr. Ronquillo?

A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told him that
I can do the case right that same day without Mrs. Ronquillo having to undergo another
[b]arium enema.

Q: What else did you tell him, if any?

A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her personally.

Q: And what did he say?

A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didnt want to talk
to me, and that she didnt want re-scheduling of the surgery . . .

ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely hearsay.

COURT: Remain on the record.

WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me Im sorry, Dra., we cannot re-schedule
the surgery.[17] (Underscoring supplied)

Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related by her.[18]

The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United States where she

obtained a fellowship in Reproductive Endocrinology and Infertility was indeed negligent when she scheduled to perform

professional service at 2:00 p.m. on April 5, 1999 without considering the time difference between

the Philippines and Hawaii.

The doctors act did not, however, reflect gross negligence as defined above. Her argument that

Although petitioner failed to take into consideration the time difference between
the Philippines and Hawaii, the situation then did not present any clear and apparent harm or injury that
even a careless person may perceive. Unlike in situations where the Supreme Court had found gross
negligence to exist, petitioner could not have been conscious of any foreseeable danger that may occur
since she actually believed that she would make it to the operation that was elective in nature, the only
purpose of which was to determine the real cause of infertility and not to treat and cure a life threatening
disease. Thus, in merely fixing the date of her appointment with respondent Eva Marie Ronquillo,
petitioner was not in the pursuit or performance of conduct which any ordinary person may deem to
probably and naturally result in injury,[19] (Underscoring in original)

thus persuades.

It bears noting that when she was scheduling the date of her performance of the procedure, Dr. Ilao-Oreta had

just gotten married and was preparing for her honeymoon,[20] and it is of common human knowledge that excitement

attends its preparations. Her negligence could then be partly attributed to human frailty which rules out its

characterization as gross.

The doctors negligence not being gross, the spouses are not entitled to recover moral damages.

Neither are the spouses entitled to recover exemplary damages in the absence of a showing that Dr. Ilao-Oreta

acted in a wanton, fraudulent, reckless, oppressive or malevolent manner,[21] nor to award of attorneys fees as, contrary

to the finding of the Court of Appeals that the spouses were compelled to litigate and incur expenses to protect their

interest,[22] the records show that they did not exert enough efforts to settle the matter before going to court. Eva Marie

herself testified:

ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case, you did not make any demand on Dr. Ilao-Oreta
regarding the claims which you have allegedly incurred, because of the failed laparoscopic
surgery operation?

A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . .
 Q: But did you demand?

A: No, I did not demand because

ATTY. SINJIAN: That will be all, your Honor.

ATTY. LONTOK: The witness is still explaining.

WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the meeting for me and Dr.
Oreta to settle things and reimburse all the money that I spent from the hospital, and he even
suggested Dr. Oreta to personally talk to me.

ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
A: Yes.

Q: But you did not demand anything or write to Dr. Oreta?

A: No.

Q: Before instituting this case?

A: No.[23] (Underscoring supplied)

Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-taken. Article 2201 of the Civil Code

provides:

In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is
liable shall be those which are the natural and probable consequences of the breach of the obligation,
and which the parties have foreseen or could have reasonably foreseen at the time the obligation was
constituted.

In fixing the amount of actual damages, the Court of Appeals and the trial court included expenses which the spouses

incurred prior to April 5, 1999 when the breach of contract complained of occurred.[24] The Court of Appeals also included

the alleged P300 spent on fuel consumption from the spouses residence at San Pascual, Batangas to the St.

Lukes Medical Center in Quezon City and the alleged P500 spent on food in the hospital canteen, both of which are

unsubstantiated by independent or competent proof.[25] The only piece of documentary evidence supporting the food and

fuel expenses is an unsigned listing.[26] As the fuel and food expenses are not adequately substantiated, they cannot be

included in the computation of the amount of actual damages. So Premiere Development Bank v. Court of

Appeals[27]instructs:

In the instant case, the actual damages were proven through the sole testimony
of Themistocles Ruguero, the vice president for administration of Panacor. In his testimony, the witness
affirmed that Panacor incurred losses, specifically, in terms of training and seminars, leasehold
acquisition, procurement of vehicles and office equipment without, however, adducing receipts to
substantiate the same. The documentary evidence marked as Exhibit W, which was an ordinary private
writing allegedly itemizing the capital expenditures and losses from the failed operation of Panacor, was
not testified to by any witness to ascertain the veracity of its content. Although the lower court fixed
the sum of P4,520,000.00 as the total expenditures incurred by Panacor, it failed to show how and in
what manner the same were substantiated by the claimant with reasonable certainty.Hence, the claim
for actual damages should be received with extreme caution since it is only based on bare assertion
without support from independent evidence. Premieres failure to prove actual expenditure consequently
conduces to a failure of its claim. In determining actual damages, the court cannot rely on mere
assertions, speculations, conjectures or guesswork but must depend on competent proof and on the
best evidence obtainable regarding the actual amount of loss.[28] (Underscoring supplied)

The list of expenses cannot replace receipts when they should have been issued as a matter of course in business

transactions[29] as in the case of purchase of gasoline and of food.

The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of Account

issued by the hospital, the pertinent entries of which read:

xxxx
 GROSS HOSPITAL CHARGES 2,416.50
4/5/1999 1699460 DEPOSITOFFICIAL
RECEIPT (5,000.00)
(5,000.00)
________
4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55)
FLOOR HINOX 500 MG CAP
SECOND 0284894 UNUSED MED 0439893 (62.25)
FLOOR PHENERGAN 2 ML
50MG ______ (127.80)
BALANCE DUE (2,711.30)[30]
=======

As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70 (the gross hospital charges

of P2,416.50 less the unused medicine in the amount of P127.80) was debited from the P5,000 deposit[31] to thus leave

a balance of the deposit in the amount of P2,711.30, which the trial court erroneously denominated as confinement

fee. The remaining balance of P2,711.30 was the amount refundable to the spouses.

Following Eastern Shipping Lines, Inc. v. Court of Appeals,[32] this Court awards interest on the actual damages

to be paid by Dr. Ilao-Oreta at the rate of 6% per annum from the time of the filing of the complaint on May 18, 1999,

and at 12% per annum from the finality of this judgment until its satisfaction.

WHEREFORE, the petition is GRANTED. The decision appealed from is MODIFIED in that

1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages is REDUCED to P2,288.70,

to bear interest at a rate of 6% per annumfrom the time of the filing of the complaint on May 18, 1999 and, upon finality

of this judgment, at the rate of 12% per annum until satisfaction; and

2. The award of moral and exemplary damages and attorneys fees is DELETED. SO ORDERED.
 BOARD OF MEDICINE, G.R. No. 166097

DR. RAUL FLORES

(now DR. JOSE S. RAMIREZ),

in his capacity as Chairman of the

Board, PROFESSIONAL

REGULATION COMMISSION,

through its Chairman,

HERMOGENES POBRE

(now DR. ALCESTIS M. GUIANG),

Petitioners,

-versus-

Promulgated:

YASUYUKI OTA, July 14, 2008

Respondent.

x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari assailing the Decision[1] of the Court of Appeals (CA) in CA-G.R.
SP No. 84945[2] dated November 16, 2004which affirmed the Decision[3] of the Regional Trial Court (RTC), Branch
22, Manila, dated October 19, 2003.[4]

The facts are as follows:

Yasuyuki Ota (respondent) is a Japanese national, married to a Filipina, who has continuously resided in
the Philippines for more than 10 years. He graduated from Bicol Christian College of Medicine on April 21, 1991 with a
degree of Doctor of Medicine.[5] After successfully completing a one-year post graduate internship training at
the Jose Reyes Memorial Medical Center, he filed an application to take the medical board examinations in order to
obtain a medical license. He was required by the Professional Regulation Commission (PRC) to submit an affidavit of
undertaking, stating among others that should he successfully pass the same, he would not practice medicine until he
submits proof that reciprocity exists between Japan and the Philippines in admitting foreigners into the practice of
medicine.[6]

Respondent submitted a duly notarized English translation of the Medical Practitioners Law of Japan duly authenticated
by the Consul General of the Philippine Embassy to Japan, Jesus I. Yabes;[7] thus, he was allowed to take the Medical
Board Examinations in August 1992, which he subsequently passed.[8]

In spite of all these, the Board of Medicine (Board) of the PRC, in a letter dated March 8, 1993, denied respondent's
request for a license to

practice medicine in the Philippines on the ground that the Board believes that no genuine reciprocity can be found in
the law of Japan as there is no Filipino or foreigner who can possibly practice there. [9]
Respondent then filed a Petition for Certiorari and Mandamus against the Board before the RTC of Manila on June 24,
1993, which petition was amended on February 14, 1994 to implead the PRC through its Chairman.[10]

In his petition before the RTC, respondent alleged that the Board and the PRC, in refusing to issue in his favor a
Certificate of Registration and/or license to practice medicine, had acted arbitrarily, in clear contravention of the
provision of Section 20 of Republic Act (R.A.) No. 2382 (The Medical Act of 1959), depriving him of his legitimate right
to practice his profession in the Philippines to his great damage and prejudice.[11]

On October 19, 2003, the RTC rendered its Decision finding that respondent had adequately proved that the medical
laws of Japan allow foreigners like Filipinos to be granted license and be admitted into the practice of medicine under
the principle of reciprocity; and that the Board had a ministerial duty of issuing the Certificate of Registration and license
to respondent, as it was shown that he had substantially complied with the requirements under the law. [12] The RTC
then ordered the Board to issue in favor of respondent the corresponding Certificate of Registration and/or license to
practice medicine in the Philippines.[13]

The Board and the PRC (petitioners) appealed the case to the CA, stating that while respondent submitted documents
showing that foreigners are allowed to practice medicine in Japan, it was not shown that the conditions for the practice
of medicine there are practical and attainable by a foreign applicant, hence, reciprocity was not established; also, the
power of the PRC and the Board to regulate and control the practice of medicine is discretionary and not ministerial,
hence, not compellable by a writ of mandamus.[14]

The CA denied the appeal and affirmed the ruling of the RTC.[15]

Hence, herein petition raising the following issue:

WHETHER THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN FINDING THAT RESPONDENT
HAD ESTABLISHED THE EXISTENCE OF RECIPROCITY IN THE PRACTICE OF MEDICINE BETWEEN
THE PHILIPPINES AND JAPAN.[16]

Petitioners claim that: respondent has not established by competent and conclusive evidence that reciprocity in the
practice of medicine exists between the Philippinesand Japan. While documents state that foreigners are allowed to
practice medicine in Japan, they do not similarly show that the conditions for the practice of medicine in said country
are practical and attainable by a foreign applicant. There is no reciprocity in this case, as the requirements to practice
medicine in Japan are practically impossible for a Filipino to comply with. There are also ambiguities in the Medical
Practitioners Law of Japan, which were not clarified by respondent, i.e., what are the provisions of the School Educations
Laws, what are the criteria of the Minister of Health and Welfare of Japan in determining whether the academic and
technical capability of foreign medical graduates are the same or better than graduates of medical schools in Japan, and
who can actually qualify to take the preparatory test for the National Medical Examination. Consul General Yabes also
stated that there had not been a single Filipino who was issued a license to practice medicine by the Japanese
Government. The publication showing that there were foreigners practicing medicine in Japan, which respondent
presented before the Court, also did not specifically show that Filipinos were among those listed as practicing said
profession.[17] Furthermore, under Professional Regulation Commission v. De Guzman,[18]the power of the PRC and the
Board to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those
authorized to practice medicine, which power is discretionary and not ministerial, hence, not compellable by a writ
of mandamus.[19]

Petitioners pray that the CA Decision dated November 16, 2004 be reversed and set aside, that a new one be rendered
reinstating the Board Order dated March 8, 1993which disallows respondent to practice medicine in the Philippines, and
that respondent's petition before the trial court be dismissed for lack of merit.[20]
In his Comment, respondent argues that: Articles 2 and 11 of the Medical Practitioners Law of Japan and Section 9 of
the Philippine Medical Act of 1959 show that reciprocity exists between the Philippines and Japan concerning the practice
of medicine. Said laws clearly state that both countries allow foreigners to practice medicine in their respective
jurisdictions as long as the applicant meets the educational requirements, training or residency in hospitals and pass
the licensure examination given by either country. Consul General Yabes in his letter dated January 28, 1992 stated
that the Japanese Government allows a foreigner to practice medicine in Japan after complying with the local
requirements. The fact that there is no reported Filipino who has successfully penetrated the medical practice
in Japandoes not mean that there is no reciprocity between the two countries, since it does not follow that no Filipino
will ever be granted a medical license by the Japanese Government. It is not the essence of reciprocity that before a
citizen of one of the contracting countries can demand its application, it is necessary that the interested citizens country
has previously granted the same privilege to the citizens of the other contracting country. [21] Respondent further argues
that Section 20 of the Medical Act of 1959 [22] indicates the mandatory character of the statute and an imperative
obligation on the part of the Board inconsistent with the idea of discretion. Thus, a foreigner, just like a Filipino citizen,
who successfully passes the examination and has all the qualifications and none of the disqualifications, is entitled as a
matter of right to the issuance of a certificate of registration or a physicians license, which right is enforceable
by mandamus.[23]

Petitioners filed a Reply[24] and both parties filed their respective memoranda[25] reiterating their arguments.

The Court denies the petition for lack of merit.

There is no question that a license to practice medicine is a privilege or franchise granted by the
government.[26] It is a right that is earned through years of education and training, and which requires that one must
first secure a license from the state through professional board examinations.[27]

Indeed,

[T]he regulation of the practice of medicine in all its branches has long been recognized as a reasonable
method of protecting the health and safety of the public. That the power to regulate and control the
practice of medicine includes the power to regulate admission to the ranks of those authorized to
practice medicine, is also well recognized. Thus, legislation and administrative regulations requiring
those who wish to practice medicine first to take and pass medical board examinations have long ago
been recognized as valid exercises of governmental power. Similarly, the establishment of minimum
medical educational requirements i.e., the completion of prescribed courses in a recognized medical
school for admission to the medical profession, has also been sustained as a legitimate exercise of the
regulatory authority of the state.[28]

It must be stressed however that the power to regulate the exercise of a profession or pursuit of an occupation
cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body which
regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance
with certain conditions. As the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a
public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to
grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without prescribing definite
rules and conditions for the guidance of said officials in the exercise of their power.[29]

R.A. No. 2382 otherwise known as the Medical Act of 1959 states in Section 9 thereof that:

Section 9. Candidates for Board Examinations.- Candidates for Board examinations shall have the
following qualifications:

1. He shall be a citizen of the Philippines or a citizen of any foreign country who has submitted competent
and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that
 his countrys existing laws permit citizens of the Philippines to practice medicine under the same rules
and regulations governing citizens thereof;

xxxx

Presidential Decree (P.D.) No. 223[30] also provides in Section (j) thereof that:

j) The [Professional Regulation] Commission may, upon the recommendation of the Board
concerned, approve the registration of and authorize the issuance of a certificate of registration with or
without examination to a foreigner who is registered under the laws of his country: Provided, That the
requirement for the registration or licensing in said foreign state or country are substantially the same
as those required and contemplated by the laws of the Philippines and that the laws of such foreign
state or country allow the citizens of the Philippines to practice the profession on the same basis and
grant the same privileges as the subject or citizens of such foreign state or country: Provided, finally,
That the applicant shall submit competent and conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his country's existing laws permit citizens of the Philippines
to practice the profession under the rules and regulations governing citizens thereof. The Commission
is also hereby authorized to prescribe additional requirements or grant certain privileges to foreigners
seeking registration in the Philippines if the same privileges are granted to or some additional
requirements are required of citizens of the Philippines in acquiring the same certificates in his country;

As required by the said laws, respondent submitted a copy of the Medical Practitioners Law of Japan, duly
authenticated by the Consul General of the Embassy of the Philippines in Japan, which provides in Articles 2 and 11,
thus:

Article 2. Anyone who wants to be medical practitioner must pass the national examination for
medical practitioner and get license from the Minister of Health and Welfare.

Article 11. No one can take the National Medical Examination except persons who conform to
one of the following items:

1. Persons who finished regular medical courses at a university based on the School
Education Laws (December 26, 1947) and graduated from said university.

2. Persons who passed the preparatory test for the National Medical Examination and
practiced clinics and public sanitation more than one year after passing the said test.

3. Persons who graduated from a foreign medical school or acquired medical practitioner
license in a foreign country, and also are recognized to have the same or more academic
ability and techniques as persons stated in item 1 and item 2 of this article.[31]

Petitioners argue that while the Medical Practitioners Law of Japan allows foreigners to practice medicine therein,
said document does not show that conditions for the practice of medicine in said country are practical and attainable by
a foreign applicant; and since the requirements are practically impossible for a Filipino to comply with, there is no
reciprocity between the two countries, hence, respondent may not be granted license to practice medicine in the
Philippines.

The Court does not agree.

 R.A. No. 2382, which provides who may be candidates for the medical board examinations, merely requires a
foreign citizen to submit competent and conclusive documentary evidence, confirmed by the Department of Foreign
Affairs (DFA), showing that his countrys existing laws permit citizens of the Philippines to practice medicine under the
same rules and regulations governing citizens thereof.

Section (j) of P.D. No. 223 also defines the extent of PRC's power to grant licenses, i.e., it may, upon
recommendation of the board, approve the registration and authorize the issuance of a certificate of registration with
or without examination to a foreigner who is registered under the laws of his country, provided the following conditions
are met: (1) that the requirement for the registration or licensing in said foreign state or country are substantially the
same as those required and contemplated by the laws of the Philippines; (2) that the laws of such foreign state or
country allow the citizens of the Philippines to practice the profession on the same basis and grant the same privileges
as the subject or citizens of such foreign state or country; and (3) that the applicant shall submit competent and
conclusive documentary evidence, confirmed by the DFA, showing that his country's existing laws permit citizens of the
Philippines to practice the profession under the rules and regulations governing citizens thereof.

The said provision further states that the PRC is authorized to prescribe additional requirements or grant certain
privileges to foreigners seeking registration in the Philippines if the same privileges are granted to or some additional
requirements are required of citizens of the Philippines in acquiring the same certificates in his country.

Nowhere in said statutes is it stated that the foreign applicant must show that the conditions for the practice of
medicine in said country are practical and attainable by Filipinos. Neither is it stated that it must first be proven that a
Filipino has been granted license and allowed to practice his profession in said country before a foreign applicant may
be given license to practice in the Philippines. Indeed, the phrase used in both R.A. No. 2382 and P.D. No. 223 is that:

[T]he applicant shall submit] competent and conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his country's existing laws permitcitizens of the Philippines
to practice the profession [of medicine] under the [same] rules and regulations governing citizens
thereof. x x x (Emphasis supplied)

It is enough that the laws in the foreign country permit a Filipino to get license and practice therein. Requiring
respondent to prove first that a Filipino has already been granted license and is actually practicing therein unduly
expands the requirements provided for under R.A. No. 2382 and P.D. No. 223.

While it is true that respondent failed to give details as to the conditions stated in the Medical Practitioners Law
of Japan -- i.e., the provisions of the School Educations Laws, the criteria of the Minister of Health and Welfare of Japan
in determining whether the academic and technical capability of foreign medical graduates are the same as or better
than that of graduates of medical schools in Japan, and who can actually qualify to take the preparatory test for the
National Medical Examination respondent, however, presented proof that foreigners are actually practicing in Japan and
that Filipinos are not precluded from getting a license to practice there.

Respondent presented before the trial court a Japanese Government publication, Physician-Dentist-
Pharmaceutist Survey, showing that there are a number of foreign physicians practicing medicine in Japan.[32] He also
presented a letter dated January 28, 1992 from Consul General Yabes,[33] which states:

Sir:

With reference to your letter dated 12 January 1993, concerning your request for a Certificate
of Confirmation for the purpose of establishing a reciprocity with Japan in the practice of medical
profession relative to the case of Mr. Yasuyuki Ota, a Japanese national, the Embassy wishes to inform
you that inquiries from the Japanese Ministry of Foreign Affairs, Ministry of Health and Welfare as well
as Bureau of Immigration yielded the following information:

1. They are not aware of a Filipino physician who was granted a license by the Japanese
Government to practice medicine in Japan;
 2. However, the Japanese Government allows a foreigner to practice medicine
in Japan after complying with the local requirements such as holding a valid visa for
the purpose of taking the medical board exam, checking the applicant's qualifications
to take the examination, taking the national board examination in Japanese and filing
an application for the issuance of the medical license.

Accordingly, the Embassy is not aware of a single Filipino physician who was issued by
the Japanese Government a license to practice medicine, because it is extremely difficult to
pass the medical board examination in the Japanese language. Filipino doctors here are only
allowed to work in Japanese hospitals as trainees under the supervision of a Japanese doctor. On certain
occasions, they are allowed to show their medical skills during seminars for demonstration purposes
only. (Emphasis supplied)

Very truly yours,

Jesus I. Yabes

Minister Counsellor &

Consul General

From said letter, one can see that the Japanese Government allows foreigners to practice medicine therein
provided that the local requirements are complied with, and that it is not the impossibility or the prohibition against
Filipinos that would account for the absence of Filipino physicians holding licenses and practicing medicine in Japan, but
the difficulty of passing the board examination in the Japanese language. Granting that there is still no Filipino who has
been given license to practice medicine in Japan, it does not mean that no Filipino will ever be able to be given one.

Petitioners next argue that as held in De Guzman, its power to issue licenses is discretionary, hence, not
compellable by mandamus.

The Court finds that the factual circumstances of De Guzman are different from those of the case at bar; hence,
the principle applied therein should be viewed differently in this case. In De Guzman, there were doubts about the
integrity and validity of the test results of the examinees from a particular school which garnered unusually high scores
in the two most difficult subjects. Said doubts called for serious inquiry concerning the applicants satisfactory compliance
with the Board requirements.[34] And as there was no definite showing that the requirements and conditions to be
granted license to practice medicine had been satisfactorily met, the Court held that the writ of mandamus may not be
granted to secure said privilege without thwarting the legislative will. [35]

Indeed, to be granted the privilege to practice medicine, the applicant must show that he possesses all the
qualifications and none of the disqualifications. It must also appear that he has fully complied with all the conditions
and requirements imposed by the law and the licensing authority.[36]

In De Guzman itself, the Court explained that:

A careful reading of Section 20[37] of the Medical Act of 1959 discloses that the law uses the
word shall with respect to the issuance of certificates of registration. Thus, the petitioners
[PRC] shall sign and issue certificates of registration to those who have satisfactorily complied with the
requirements of the Board. In statutory construction the term shall is a word of command. It is given
imperative meaning. Thus, when an examinee satisfies the requirements for the grant of his physician's
license, the Board is obliged to administer to him his oath and register him as a physician, pursuant to
Section 20 and par. (1) of Section 22 of the Medical Act of 1959.[38]
 In this case, there is no doubt as to the competence and qualifications of respondent. He finished his medical
degree from Bicol Christian College of Medicine.He completed a one-year post graduate internship training at
the Jose Reyes Memorial Medical Center, a government hospital. Then he passed the Medical Board Examinations which
was given on August 8, 1992 with a general average of 81.83, with scores higher than 80 in 9 of the 12 subjects.

In fine, the only matter being questioned by petitioners is the alleged failure of respondent to prove that there
is reciprocity between the laws of Japan and the Philippines in admitting foreigners into the practice of
medicine. Respondent has satisfactorily complied with the said requirement and the CA has not committed any
reversible error in rendering its Decision dated November 16, 2004 and Resolution dated October 19, 2003.

WHEREFORE, the petition is hereby DENIED for lack of merit. SO ORDERED.

SPOUSES FREDELICTO FLORES G.R. No. 158996
(deceased) and FELICISIMA FLORES,
Petitioners,
Promulgated:

November 14, 2008

- versus -

SPOUSES DOMINADOR PINEDA and

VIRGINIA SACLOLO, and FLORENCIO,
CANDIDA, MARTA, GODOFREDO,
BALTAZAR and LUCENA, all surnamed
PINEDA, as heirs of the deceased
TERESITA S. PINEDA, and UNITED
DOCTORS MEDICAL CENTER, INC.,

Respondents.

x -------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

This petition involves a medical negligence case that was elevated to this Court through an appeal
by certiorari under Rule 45 of the Rules of Court. The petition assails the Decision[1] of the Court of Appeals (CA) in CA
G.R. CV No. 63234, which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Nueva Ecija,
Branch 37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA decision states:

WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of Baloc,
Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with modifications as follows:

1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United Doctors
Medical Center, Inc. to jointly and severally pay the plaintiff-appellees heirs of Teresita
Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and Florencio, Candida,
Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda, the sum of P400,000.00 by
way of moral damages;

2) Ordering the above-named defendant-appellants to jointly and severally pay the above-
named plaintiff-appellees the sum of P100,000.00 by way of exemplary damages;

3) Ordering the above-named defendant-appellants to jointly and severally pay the above-
named plaintiff-appellees the sum of P36,000.00 by way of actual and compensatory
damages; and

4) Deleting the award of attorneys fees and costs of suit.

SO ORDERED.

While this case essentially involves questions of facts, we opted for the requested review in light of questions we have
on the findings of negligence below, on the awarded damages and costs, and on the importance of this type of ruling on
medical practice.[3]
 BACKGROUND FACTS

Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo, Nueva Ecija. She consulted
on April 17, 1987 her townmate, Dr. Fredelicto Flores, regarding her medical condition. She complained of general body
weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto initially
interviewed the patient and asked for the history of her monthly period to analyze the probable cause of the vaginal
bleeding. He advised her to return the following week or to go to the United Doctors Medical Center (UDMC) in Quezon
City for a general check-up. As for her other symptoms, he suspected that Teresita might be suffering from diabetes
and told her to continue her medications.[4]

Teresita did not return the next week as advised. However, when her condition persisted, she went to further consult
Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon City with
her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her sister was then
so weak that she had to lie down on the couch of the clinic while they waited for the doctor. When Dr. Fredelicto arrived,
he did a routine check-up and ordered Teresitas admission to the hospital. In the admission slip, he directed the hospital
staff to prepare the patient for an on call D&C[5] operation to be performed by his wife, Dr. Felicisima Flores (Dr.
Felicisima). Teresita was brought to her hospital room at around 12 noon; the hospital staff forthwith took her blood
and urine samples for the laboratory tests[6] which Dr. Fredelicto ordered.

At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only then that she met Dr.
Felicisima, an obstetrician and gynecologist. The two doctors Dr. Felicisima and Dr. Fredelicto, conferred on the patients
medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own briefings. She also
interviewed and conducted an internal vaginal examination of the patient which lasted for about 15 minutes. Dr.
Felicisima thereafter called up the laboratory for the results of the tests. At that time, only the results for the blood
sugar (BS), uric acid determination, cholesterol determination, and complete blood count (CBC) were
available. Teresitas BS count was 10.67mmol/l[7] and her CBC was 109g/l.[8]

Based on these preparations, Dr. Felicisima proceeded with the D&C operation with Dr. Fredelicto administering
the general anesthesia. The D&C operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita was wheeled back
to her room.

A day after the operation (or on April 29, 1987), Teresita was subjected to an ultrasound examination as a
confirmatory procedure. The results showed that she had an enlarged uterus and myoma uteri.[9] Dr. Felicisima,
however, advised Teresita that she could spend her recovery period at home. Still feeling weak, Teresita opted for
hospital confinement.

Teresitas complete laboratory examination results came only on that day (April 29, 1987). Teresitas urinalysis
showed a three plus sign (+++) indicating that the sugar in her urine was very high. She was then placed under the
care of Dr. Amado Jorge, an internist.

By April 30, 1987, Teresitas condition had worsened. She experienced difficulty in breathing and was rushed to
the intensive care unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type II.[10] Insulin was
administered on the patient, but the medication might have arrived too late. Due to complications induced by diabetes,
Teresita died in the morning of May 6, 1987.[11]
 Believing that Teresitas death resulted from the negligent handling of her medical needs, her family
(respondents) instituted an action for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively
referred to as the petitioner spouses) before the RTC of Nueva Ecija.

The RTC ruled in favor of Teresitas family and awarded actual, moral, and exemplary damages, plus attorneys
fees and costs.[12] The CA affirmed the judgment, but modified the amount of damages awarded and deleted the award
for attorneys fees and costs of suit.[13]

Through this petition for review on certiorari, the petitioner spouses Dr. Fredelicto (now deceased) and Dr.
Felicisima Flores allege that the RTC and CA committed a reversible error in finding them liable through negligence for
the death of Teresita Pineda.

ASSIGNMENT OF ERRORS

The petitioner spouses contend that they exercised due care and prudence in the performance of their duties as medical
professionals. They had attended to the patient to the best of their abilities and undertook the management of her case
based on her complaint of an on-and-off vaginal bleeding. In addition, they claim that nothing on record shows that the
death of Teresita could have been averted had they employed means other than what they had adopted in the
ministration of the patient.

THE COURTS RULING

We do not find the petition meritorious.

The respondents claim for damages is predicated on their allegation that the decision of the petitioner spouses to
proceed with the D&C operation, notwithstanding Teresitas condition and the laboratory test results, amounted to
negligence. On the other hand, the petitioner spouses contend that a D&C operation is the proper and accepted
procedure to address vaginal bleeding the medical problem presented to them. Given that the patient died after the
D&C, the core issue is whether the decision to proceed with the D&C operation was an honest mistake of judgment or
one amounting to negligence.

Elements of a Medical Negligence Case

A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused
bodily harm to or the death of a patient. There are four elements involved in a medical negligence case, namely: duty,
breach, injury, and proximate causation.[14]

Duty refers to the standard of behavior which imposes restrictions on ones conduct. [15] The standard in turn refers to
the amount of competence associated with the proper discharge of the profession. A physician is expected to use at
least the same level of care that any other reasonably competent doctor would use under the same
circumstances. Breach of duty occurs when the physician fails to comply with these professional standards. If injury
results to the patient as a result of this breach, the physician is answerable for negligence. [16]
As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff. [17] To
successfully pursue a claim, the plaintiff must prove by preponderance of evidence that, one, the physician either failed
to do something which a reasonably prudent health care provider would have done, or that he did something that a
reasonably prudent provider would not have done; and two, the failure or action caused injury to the patient.[18] Expert
testimony is therefore essential since the factual issue of whether a physician or surgeon has exercised the requisite
degree of skill and care in the treatment of his patient is generally a matter of expert opinion. [19]

Standard of Care and Breach of Duty

D&C is the classic gynecologic procedure for the evaluation and possible therapeutic treatment for abnormal vaginal
bleeding.[20] That this is the recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado
(Dr. Mercado), the expert witnesses presented by the respondents:

DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform what we call D&C for
diagnostic purposes.

xxx xxx xxx

Q: So are you trying to tell the Court that D&C can be a diagnostic treatment?

A: Yes, sir. Any doctor knows this.[21]

Dr. Mercado, however, objected with respect to the time the D&C operation should have been conducted in Teresitas
case. He opined that given the blood sugar level of Teresita, her diabetic condition should have been
addressed first:

Q: Why do you consider the time of performance of the D&C not appropriate?

A: Because I have read the record and I have seen the urinalysis, [there is] spillage in the
urine, and blood sugar was 10.67

Q: What is the significance of the spillage in the urine?

A: It is a sign that the blood sugar is very high.

Q: Does it indicate sickness?

A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67.

COURT: In other words, the operation conducted on the patient, your opinion, that it is
inappropriate?

A: The timing of [when] the D&C [was] done, based on the record, in my personal opinion,
that D&C should be postponed a day or two.[22]

The petitioner spouses countered that, at the time of the operation, there was nothing to indicate that Teresita
was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that she was a diabetic
considering that this was random blood sugar;[23] there were other factors that might have caused Teresitas blood
sugar to rise such as the taking of blood samples during lunchtime and while patient was being given intra-venous
dextrose.[24] Furthermore, they claim that their principal concern was to determine the cause of and to stop the vaginal
bleeding.

The petitioner spouses contentions, in our view, miss several points. First, as early as April 17, 1987, Teresita
was already suspected to be suffering from diabetes.[25] This suspicion again arose right before the D&C operation
on April 28, 1987 when the laboratory result revealed Teresitas increased blood sugar level. [26] Unfortunately, the
petitioner spouses did not wait for the full medical laboratory results before proceeding with the D&C, a fact that was
never considered in the courts below. Second, the petitioner spouses were duly advised that the patient was
experiencing general body weakness, loss of appetite, frequent urination, and thirst all of which are classic symptoms
of diabetes.[27] When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very
least, alert the physician of the possibility that the patient may be afflicted with the suspected disease:

[Expert testimony for the plaintiff showed that] tests should have been ordered immediately on
admission to the hospital in view of the symptoms presented, and that failure to recognize the existence
of diabetes constitutes negligence.[28]

Third, the petitioner spouses cannot claim that their principal concern was the vaginal bleeding and should not therefore
be held accountable for complications coming from other sources. This is a very narrow and self-serving view that even
reflects on their competence.

Taken together, we find that reasonable prudence would have shown that diabetes and its complications were
foreseeable harm that should have been taken into consideration by the petitioner spouses. If a patient suffers from
some disability that increases the magnitude of risk to him, that disability must be taken into account so
long as it is or should have been known to the physician.[29] And when the patient is exposed to an increased risk,
it is incumbent upon the physician to take commensurate and adequate precautions.

Taking into account Teresitas high blood sugar,[30] Dr. Mendoza opined that the attending physician should have
postponed the D&C operation in order to conduct a confirmatory test to make a conclusive diagnosis of diabetes and to
refer the case to an internist or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan), an obstetrician and
gynecologist, who stated that the patients diabetes should have been managed by an internist prior to, during, and
after the operation.[31]

Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely so heavy and life-threatening
that urgent first-aid measures are required.[32]Indeed, the expert witnesses declared that a D&C operation on a
hyperglycemic patient may be justified only when it is an emergency case when there is profuse vaginal bleeding. In
this case, we choose not to rely on the assertions of the petitioner spouses that there was profuse bleeding, not only
because the statements were self-serving, but also because the petitioner spouses were inconsistent in their
testimonies. Dr. Fredelicto testified earlier that on April 28, he personally saw the bleeding, [33] but later on said that he
did not see it and relied only on Teresitas statement that she was bleeding. [34] He went on to state that he scheduled
the D&C operation without conducting any physical examination on the patient.

The likely story is that although Teresita experienced vaginal bleeding on April 28, it was not sufficiently profuse
to necessitate an immediate emergency D&C operation. Dr. Tan[35] and Dr. Mendoza[36] both testified that the medical
records of Teresita failed to indicate that there was profuse vaginal bleeding. The claim that there was profuse vaginal
bleeding although this was not reflected in the medical records strikes us as odd since the main complaint is vaginal
bleeding. A medical record is the only document that maintains a long-term transcription of patient care and as such,
its maintenance is considered a priority in hospital practice. Optimal record-keeping includes all patient inter-
actions. The records should always be clear, objective, and up-to-date.[37] Thus, a medical record that does not indicate
profuse medical bleeding speaks loudly and clearly of what it does not contain.

That the D&C operation was conducted principally to diagnose the cause of the vaginal bleeding further leads
us to conclude that it was merely an elective procedure, not an emergency case. In an elective procedure, the physician
must conduct a thorough pre-operative evaluation of the patient in order to adequately prepare her for the operation
and minimize possible risks and complications. The internist is responsible for generating a comprehensive evaluation
of all medical problems during the pre-operative evaluation.[38]

The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease, but rather
to identify and quantify comorbidity that may impact on the operative outcome. This evaluation is driven
by findings on history and physical examination suggestive of organ system dysfunctionThe goal is to
uncover problem areas that may require further investigation or be amenable to preoperative
optimization.

If the preoperative evaluation uncovers significant comorbidity or evidence of poor control of an

underlying disease process, consultation with an internist or medical specialist may be required to
facilitate the work-up and direct management. In this process, communication between the surgeons
and the consultants is essential to define realistic goals for this optimization process and to expedite
surgical management.[39] [Emphasis supplied.]

Significantly, the evidence strongly suggests that the pre-operative evaluation was less than complete as the laboratory

results were fully reported only on the day following the D&C operation. Dr. Felicisima only secured a telephone report

of the preliminary laboratory result prior to the D&C. This preliminary report did not include the 3+ status of sugar in

the patients urine[40] a result highly confirmatory of diabetes.

Because the D&C was merely an elective procedure, the patients uncontrolled hyperglycemia presented a far

greater risk than her on-and-off vaginal bleeding.The presence of hyperglycemia in a surgical patient is associated with

poor clinical outcomes, and aggressive glycemic control positively impacts on morbidity and mortality. [41] Elective

surgery in people with uncontrolled diabetes should preferably be scheduled after acceptable glycemic control has been

achieved.[42]According to Dr. Mercado, this is done by administering insulin on the patient.[43]

The management approach in this kind of patients always includes insulin therapy in combination
with dextrose and potassium infusion. Insulin xxx promotes glucose uptake by the muscle and fat
cells while decreasing glucose production by the liver xxx. The net effect is to lower blood glucose
levels.[44]

The prudent move is to address the patients hyperglycemic state immediately and promptly before any other procedure

is undertaken. In this case, there was no evidence that insulin was administered on Teresita prior to or during the D&C

operation. Insulin was only administered two days after the operation.

As Dr. Tan testified, the patients hyperglycemic condition should have been managed not only before and
during the operation, but also immediately after.Despite the possibility that Teresita was afflicted with diabetes, the
possibility was casually ignored even in the post-operative evaluation of the patient; the concern, as the petitioner
spouses expressly admitted, was limited to the complaint of vaginal bleeding. Interestingly, while the ultrasound test
confirmed that Teresita had a myoma in her uterus, she was advised that she could be discharged a day after the
operation and that her recovery could take place at home. This advice implied that a day after the operation and even
after the complete laboratory results were submitted, the petitioner spouses still did not recognize any post-operative
concern that would require the monitoring of Teresitas condition in the hospital.
 The above facts, point only to one conclusion that the petitioner spouses failed, as medical professionals, to
comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients undergoing
surgery. Whether this breach of duty was the proximate cause of Teresitas death is a matter we shall next determine.

Injury and Causation

As previously mentioned, the critical and clinching factor in a medical negligence case is proof of the causal

connection between the negligence which the evidence established and the plaintiffs injuries;[45] the plaintiff must

plead and prove not only that he had been injured and defendant has been at fault, but also that the defendants fault

caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be

proven within a reasonable medical probability based upon competent expert testimony. [46]

The respondents contend that unnecessarily subjecting Teresita to a D&C operation without adequately preparing her,
aggravated her hyperglycemic state and caused her untimely demise. The death certificate of Teresita lists down the
following causes of death:

Immediate cause: Cardiorespiratory arrest

Antecedent cause: Septicemic shock, ketoacidocis

Underlying cause: Diabetes Mellitus II

Other significant conditions

contributing to death: Renal Failure Acute[47]

Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form of

physical stress. Dr. Mendoza explained how surgical stress can aggravate the patients hyperglycemia: when stress
occurs, the diabetics body, especially the autonomic system, reacts by secreting hormones which are counter-

regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to death.[48] Medical literature further

explains that if the blood sugar has become very high, the patient becomes comatose (diabetic coma). When this

happens over several days, the body uses its own fat to produce energy, and the result is high levels of waste products

(called ketones) in the blood and urine (called diabetic ketoacidiosis, a medical emergency with a significant

mortality).[49] This was apparently what happened in Teresitas case; in fact, after she had been referred to the internist

Dr. Jorge, laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above the normal blood sugar

range. Thus, between the D&C and death was the diabetic complication that could have been prevented with the

observance of standard medical precautions. The D&C operation and Teresitas death due to aggravated diabetic

condition is therefore sufficiently established.

The trial court and the appellate court pinned the liability for Teresitas death on both the petitioner spouses and

this Court finds no reason to rule otherwise.However, we clarify that Dr. Fredelictos negligence is not solely the act of
ordering an on call D&C operation when he was mainly an anaesthesiologist who had made a very cursory examination

of the patients vaginal bleeding complaint. Rather, it was his failure from the very start to identify and confirm, despite

the patients complaints and his own suspicions, that diabetes was a risk factor that should be guarded against, and his

participation in the imprudent decision to proceed with the D&C operation despite his early suspicion and the

confirmatory early laboratory results. The latter point comes out clearly from the following exchange during the trial:

Q: On what aspect did you and your wife consult [with] each other?

A: We discussed on the finding of the laboratory [results] because the hemoglobin was below normal,
the blood sugar was elevated, so that we have to evaluate these laboratory results what it
means.

Q: So it was you and your wife who made the evaluation when it was phoned in?
 A: Yes, sir.

Q: Did your wife, before performing D&C ask your opinion whether or not she can proceed?

A: Yes, anyway, she asked me whether we can do D&C based on my experience.

Q: And your answer was in the positive notwithstanding the elevation of blood sugar?

A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.][50]

If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an internist or a diabetologist (for

which reason he referred Teresita to Dr. Jorge),[51] he should have likewise refrained from making a decision to proceed

with the D&C operation since he was niether an obstetrician nor a gynecologist.

These findings lead us to the conclusion that the decision to proceed with the D&C operation, notwithstanding
Teresitas hyperglycemia and without adequately preparing her for the procedure, was contrary to the standards
observed by the medical profession. Deviation from this standard amounted to a breach of duty which resulted in the
patients death. Due to this negligent conduct, liability must attach to the petitioner spouses.

Liability of the Hospital

In the proceedings below, UDMC was the spouses Flores co-defendant. The RTC found the hospital jointly and
severally liable with the petitioner spouses, which decision the CA affirmed. In a Resolution dated August 28, 2006, this
Court however denied UDMCs petition for review on certiorari. Since UDMCs appeal has been denied and they are not
parties to this case, we find it unnecessary to delve on the matter. Consequently, the RTCs decision, as affirmed by the
CA, stands.

Award of Damages

Both the trial and the appellate court awarded actual damages as compensation for the pecuniary loss the respondents
suffered. The loss was presented in terms of the hospital bills and expenses the respondents incurred on account of
Teresitas confinement and death. The settled rule is that a plaintiff is entitled to be compensated for proven pecuniary
loss.[52] This proof the respondents successfully presented. Thus, we affirm the award of actual
damages of P36,000.00 representing the hospital expenses the patient incurred.

In addition to the award for actual damages, the respondent heirs of Teresita are likewise entitled to P50,000.00
as death indemnity pursuant to Article 2206 of the Civil Code, which states that the amount of damages for death
caused by a xxx quasi-delict shall be at least three thousand pesos,[53] even though there may have been mitigating
circumstances xxx. This is a question of law that the CA missed in its decision and which we now decide in the
respondents favor.

The same article allows the recovery of moral damages in case of death caused by a quasi-delict and enumerates
the spouse, legitimate or illegitimate ascendants or descendants as the persons entitled thereto. Moral damages are
designed to compensate the claimant for the injury suffered, that is, for the mental anguish, serious anxiety, wounded
feelings which the respondents herein must have surely felt with the unexpected loss of their daughter. We affirm the
appellate courts award ofP400,000.00 by way of moral damages to the respondents.

We similarly affirm the grant of exemplary damages. Exemplary damages are imposed by way of example or
correction for the public good.[54] Because of the petitioner spouses negligence in subjecting Teresita to an operation
without first recognizing and addressing her diabetic condition, the appellate court awarded exemplary damages to
the respondents in the amount of P100,000.00. Public policy requires such imposition to suppress the wanton acts of
an offender.[55] We therefore affirm the CAs award as an example to the medical profession and to stress that the public
good requires stricter measures to avoid the repetition of the type of medical malpractice that happened in this case.
 With the award of exemplary damages, the grant of attorneys fees is legally in order. [56] We therefore reverse
the CA decision deleting these awards, and grant the respondents the amount of P100,000.00 as attorneys fees taking
into consideration the legal route this case has taken.

WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No. 63234 finding
petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and compensatory
damages of P36,000.00; moral damages of P400,000.00; and exemplary damages of P100,000.00.

We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death indemnity and by
reversing the deletion of the award of attorneys fees and costs and restoring the award of P100,000.00 as attorneys
fees. Costs of litigation are adjudged against petitioner spouses.

To summarize, the following awards shall be paid to the family of the late Teresita Pineda:

1. The sum of P36,000.00 by way of actual and compensatory damages;

2. The sum of P50,000.00 by way of death indemnity;

3. The sum of P400,000.00 by way of moral damages;

4. The sum of P100,000.00 by way of exemplary damages;

5. The sum of P100,000.00 by way of attorneys fees; and

6. Costs.

SO ORDERED.
G.R. No. 159132 December 18, 2008

FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA RAMOLETE, respondents.*

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam
(petitioner) seeking to annul the Decision1 dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.

The antecedent facts:

On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical
Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed via telephone, Editha
was admitted to the LMC on the same day. A pelvic sonogram 2 was then conducted on Editha revealing the fetus weak
cardiac pulsation.3 The following day, Edithas repeat pelvic sonogram4 showed that aside from the fetus weak cardiac
pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised
Editha to undergo a Dilatation and Curettage Procedure (D&C) or "raspa."

On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the following day.

On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe
abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo
allegedly informed Editha that there was a dead fetus in the latters womb. After, Editha underwent laparotomy, 5 she
was found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a
procedure for hysterectomy6 and as a result, she has no more chance to bear a child.

On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint 7 for Gross Negligence
and Malpractice against petitioner before the Professional Regulations Commission (PRC).

Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and professional
incompetence in conducting the D&C procedure and the petitioners failure to remove the fetus inside Edithas
womb.8 Among the alleged acts of negligence were: first, petitioners failure to check up, visit or administer medication
on Editha during her first day of confinement at the LMC; 9 second, petitioner recommended that a D&C procedure be
performed on Editha without conducting any internal examination prior to the procedure; 10 third, petitioner immediately
suggested a D&C procedure instead of closely monitoring the state of pregnancy of Editha.11

In her Answer,12 petitioner denied the allegations of negligence and incompetence with the following explanations: upon
Edithas confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to anticipate
the arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses carried
out; petitioner visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an
internal examination on Editha and she discovered that the latters cervix was already open, thus, petitioner discussed
the possible D&C procedure, should the bleeding become more profuse; on July 30 1994, she conducted another internal
examination on Editha, which revealed that the latters cervix was still open; Editha persistently complained of her
vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel movement; thus,
petitioner advised Editha to undergo D&C procedure which the respondents consented to; petitioner was very vocal in
the operating room about not being able to see an abortus;13 taking the words of Editha to mean that she was passing
out some meaty mass and clotted blood, she assumed that the abortus must have been expelled in the process of
bleeding; it was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to
return for check-up on August 5, 1994, which the latter failed to do.

Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July 31, 1994
against doctors advice and her unjustified failure to return for check-up as directed by petitioner that contributed to
her life-threatening condition on September 16, 1994; that Edithas hysterectomy was brought about by her very
abnormal pregnancy known as placenta increta, which was an extremely rare and very unusual case of abdominal
placental implantation. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor,
there would be no difference at all because at any stage of gestation before term, the uterus would rupture just the
same.

On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision,14 exonerating petitioner from the
charges filed against her. The Board held:

Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy
Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and
manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy
cases.

When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an
ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not
specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so
specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she
was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C
conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse
bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic
 pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. Therefore,
a more extensive operation needed in this case of pregnancy in order to remove the fetus. 15

Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a
Decision16 reversing the findings of the Board and revoking petitioners authority or license to practice her profession as
a physician.17

Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. Petitioner also
dubbed her petition as one for certiorari18 under Rule 65 of the Rules of Court.

In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was an
improper remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive.19 PRC is not among the
quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for
review of the PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a
petition for certiorari under Rule 65, the same would still be dismissed for being improper and premature. Citing Section
2620 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy
under the ordinary course of law which petitioner should have availed herself of was to appeal to the Office of the
President.21

Hence, herein petition, assailing the decision of the CA on the following grounds:

1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL
REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES
CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;

2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE RULES
OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI
WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE
DECISION WAS A PATENT NULLITY;

3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE
BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION;

4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER FORUM
THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS
RELIED UPON BY THE PETITIONER;

5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE HEARD ON APPEAL IS A CLEAR
VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE
JUDGMENT NULL AND VOID;

6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL
WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES
AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;

7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS LICENSE TO PRACTICE

MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES INJURY;

8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING OF
THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE
CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO
MANALO, M.D. ;[and]

9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE NOT
ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD.22

The Court will first deal with the procedural issues.

Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She
invokes Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which
provides:

Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the
Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal
from the Decision of the Board within the same period. (Emphasis supplied)

Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right, may
appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the
Board only when so allowed by law.23 Petitioner cited Section 26 of Republic Act No. 2382 or "The Medical Act of 1959,"
to wit:

Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall
automatically become final thirty days after the date of its promulgation unless the respondent, during the same
period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later
 to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask
for a review of the case, or may file in court a petition for certiorari.

Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case to
file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the
belief that the revocation of license to practice a profession is penal in nature.24

The Court does not agree.

For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only:
(1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been
entered; and (5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated
without the express consent of the accused.25 These elements were not present in the proceedings before the Board of
Medicine, as the proceedings involved in the instant case were administrative and not criminal in nature. The Court has
already held that double jeopardy does not lie in administrative cases.26

Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by
petitioner was subsequently amended to read:

Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board
within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory.
Interlocutory order shall not be appealable to the Commission. (Amended by Res. 174, Series of
1990).27(Emphasis supplied)

Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right
to appeal is not a natural right or a part of due process, but a mere statutory privilege that may be exercised only in
the manner prescribed by law.28 In this case, the clear intent of the amendment is to render the right to appeal from a
decision of the Board available to both complainants and respondents.

Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A), or the New Rules of
Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory
Boards, which provides for the method of appeal, to wit:

Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and
executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal
being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision,
order or resolution may file a notice of appeal from the decision, order or resolution of the Board to
the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a
notice of appeal together with the appellants brief or memorandum on appeal, and paying the appeal and legal
research fees. x x x29

The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the
new rules provide that "a party aggrieved" may file a notice of appeal. Thus, either the complainant or the respondent
who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an
elementary rule that when the law speaks in clear and categorical language, there is no need, in the absence of
legislative intent to the contrary, for any interpretation.30 Words and phrases used in the statute should be given their
plain, ordinary, and common usage or meaning.31

Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 43 32 of the Rules of
Court was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial
agencies.33 Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just
because it is not mentioned therein.34

On this point, the Court agrees with the petitioner.

Sec. 1, Rule 43 of the Rules of Court provides:

Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax
Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-
judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the
President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government
Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law. (Emphasis supplied)

Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1,
Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion
from the coverage of said Rule.35 The Rule expressly provides that it should be applied to appeals from awards,
judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The
phrase "among these agencies" confirms that the enumeration made in the Rule is not exclusive to the agencies therein
listed.36

Specifically, the Court, in Yang v. Court of Appeals,37 ruled that Batas Pambansa (B.P.) Blg. 12938 conferred upon the
CA exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held:
 The law has since been changed, however, at least in the matter of the particular court to which appeals from
the Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its
Section 29, conferred on the Court of Appeals "exclusive appellate jurisdiction over all final judgments, decisions,
resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or
commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x." In virtue of BP
129, appeals from the Professional Regulations Commission are now exclusively cognizable by the
Court of Appeals.39 (Emphasis supplied)

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure,40 lodged with the CA such
jurisdiction over the appeals of decisions made by the PRC.

Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony
to support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of medical
malpractice, expert testimony is necessary to support the conclusion as to the cause of the injury. 41

Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to
his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under
similar conditions, and in like surrounding circumstances.42 In order to successfully pursue such a claim, a patient must
prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon
would not have done, and that the failure or action caused injury to the patient.43

There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. 44

A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas physician,
petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to
treat a condition under the same circumstances.45 The breach of these professional duties of skill and care, or their
improper performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable
malpractice.46 As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach
thereof, expert testimony is essential.47 Further, inasmuch as the causes of the injuries involved in malpractice actions
are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.48

In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do
something which a reasonably prudent physician or surgeon would have done.

Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the
subject.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.49

Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and
is a professor at the University of the Philippines.50 According to him, his diagnosis of Edithas case was "Ectopic
Pregnancy Interstitial (also referred to as Cornual), Ruptured."51 In stating that the D&C procedure was not the
proximate cause of the rupture of Edithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows:

Atty. Hidalgo:

Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the
proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission.
Will you please tell us whether that is true or not?

A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the
site of the pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was thinking a while
ago about another reason- well, why I dont think so, because it is the triggering factor for the rupture, it could
havethe rupture could have occurred much earlier, right after the D&C or a few days after the D&C.

Q: In this particular case, doctor, the rupture occurred to have happened minutes prior to the hysterectomy
or right upon admission on September 15, 1994 which is about 1 months after the patient was discharged,
after the D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture
in this particular instance?

A: I dont think so for the two reasons that I have just mentioned- that it would not be possible
for the instrument to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could
have occurred earlier.52 (Emphases supplied)

Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C procedure
was not the proximate cause of the rupture of Edithas uterus.

During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should he be
placed in a similar circumstance as the petitioner. He stated:

Atty. Ragonton:

Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal
dilatation and curettage procedure?
 A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the
procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you
should still have some reservations, and wait a little more time.

Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your
standard practice to check the fetal parts or fetal tissues that were allegedly removed?

A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the
meaty mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way.

Q: There was [sic] some portions of the fetal parts that were removed?

A: No, it was described as scanty scraping if I remember it rightscanty.

Q: And you would not mind checking those scant or those little parts that were removed?

A: Well, the fact that it was described means, I assume that it was checked, no. It was described as
scanty and the color also, I think was described. Because it would be very unusual, even improbable that
it would not be examined, because when you scrape, the specimens are right there before your eyes.
Its in front of you. You can touch it. In fact, some of them will stick to the instrument and therefore
to peel it off from the instrument, you have to touch them. So, automatically they are examined
closely.

Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone?

A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up
somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be
a lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms
you can interpret that comes with practice. And, I see no reason for not allowing telephone orders unless
it is the first time that you will be encountering the patient. That you have no idea what the problem is.

Q: But, doctor, do you discharge patients without seeing them?

A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone
orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice
somehow justifies telephone orders. I have patients whom I have justified and then all of a sudden, late in
the afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as
they anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the
nurse to allow them to go because I have seen that patient and I think I have full grasp of her problems. So,
thats when I make this telephone orders. And, of course before giving that order I ask about how she
feels.53 (Emphases supplied)

From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard practice,
with the same level of care that any reasonably competent doctor would use to treat a condition under the same
circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha.

Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176 54 of the Civil
Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are:

Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause
of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the result would not have occurred. 55 An injury or damage is
proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or
omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable consequence of the act or omission.56

In the present case, the Court notes the findings of the Board of Medicine:

When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4,
1994 or four (4) days after the D&C. This advise was clear in complainants Discharge
Sheet. However, complainant failed to do so. This being the case, the chain of continuity as required in order
that the doctrine of proximate cause can be validly invoked was interrupted. Had she returned, the
respondent could have examined her thoroughly.57 x x x (Emphases supplied)

Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same
would have been rectified if Editha followed the petitioners order to return for a check-up on August 4, 1994. Dr. Manalo
stated:

Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there
would have been ample opportunity to rectify the misdiagnosis, had the patient returned, as
instructed for her follow-up evaluation. It was one and a half months later that the patient sought
consultation with another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture,
 is a dynamic process. Much change in physical findings could be expected in 1 months, including the
emergence of suggestive ones.58

It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise. Editha omitted
the diligence required by the circumstances which could have avoided the injury. The omission in not returning for a
follow-up evaluation played a substantial part in bringing about Edithas own injury. Had Editha returned, petitioner
could have conducted the proper medical tests and procedure necessary to determine Edithas health condition and
applied the corresponding treatment which could have prevented the rupture of Edithas uterus. The D&C procedure
having been conducted in accordance with the standard medical practice, it is clear that Edithas omission was the
proximate cause of her own injury and not merely a contributory negligence on her part.

Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured,
which, concurring with the defendants negligence, is the proximate cause of the injury. 59 Difficulty seems to be
apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. 60Where
the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal
occurrence as one of its determining factors, he cannot recover damages for the injury. 61 Again, based on the
evidence presented in the present case under review, in which no negligence can be attributed to the
petitioner, the immediate cause of the accident resulting in Edithas injury was her own omission when she
did not return for a follow-up check up, in defiance of petitioners orders. The immediate cause of Edithas
injury was her own act; thus, she cannot recover damages from the injury.

Lastly, petitioner asserts that her right to due process was violated because she was never informed by either
respondents or by the PRC that an appeal was pending before the PRC.62 Petitioner claims that a verification with the
records section of the PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC,
which did not attach the actual registry receipt but was merely indicated therein.63

Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on
Appeal, PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on
the other party.64 Also, the registry receipt could not be appended to the copy furnished to petitioners former counsel,
because the registry receipt was already appended to the original copy of the Memorandum of Appeal filed with PRC.65

It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was
served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence. 66 In
the present case, respondents did not present any proof that petitioner was served a copy of the Memorandum on
Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner
of the appeal proceedings before the PRC.

In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,67 in which the National Labor Relations
Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the
Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which
could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar.
The Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal
submitted to the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void.

All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers against
mishaps or unusual consequences68 specially so if the patient herself did not exercise the proper diligence required to
avoid the injury.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-GR SP
No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4, 1999
exonerating petitioner is AFFIRMED. No pronouncement as to costs. SO ORDERED.
 PETER PAUL PATRICK LUCAS, FATIMA G. R. No. 178763
GLADYS LUCAS, ABBEYGAIL LUCAS AND
GILLIAN LUCAS,
Petitioners,

- versus -

Promulgated:

DR. PROSPERO MA. C. TUAO,

April 21, 2009
Respondent.
x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari[1] under Rule 45 of the Revised Rules of Court, petitioners Peter Paul

Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September

2006 Decision[2] and 3 July 2007 Resolution,[3] both of the Court of Appeals in CA-G.R. CV No. 68666, entitled Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao.

In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the

Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil case

entitled, Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C.
Tuao, docketed as Civil Case No. 92-2482.

From the record of the case, the established factual antecedents of the present petition are:

Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted sore eyes in his right eye.

On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care

insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare Coordinator,

Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at
St. Lukes Medical Center, for an eye consult.

Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since the problem with his right

eye began; and that he was already taking Maxitrol to address the problem in his eye. According to Dr. Tuao, he

performed ocular routine examination on Peters eyes, wherein: (1) a gross examination of Peters eyes and their

surrounding area was made; (2) Peters visual acuity were taken; (3) Peters eyes were palpated to check the intraocular

pressure of each; (4) the motility of Peters eyes was observed; and (5) the ophthalmoscopy[4] on Peters eyes was

used. On that particular consultation, Dr. Tuao diagnosed that Peter was suffering from conjunctivitis[5] or sore eyes.
Dr. Tuao then prescribed Spersacet-C[6] eye drops for Peter and told the latter to return for follow-up after one week.

As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination, Dr. Tuao told Peter

that the sore eyes in the latters right eye had already cleared up and he could discontinue the Spersacet-

C. However, the same eye developed Epidemic Kerato Conjunctivitis (EKC),[7] a viral infection. To address the new
problem with Peters right eye, Dr. Tuao prescribed to the former a steroid-based eye drop called Maxitrol,[8] a dosage
of six (6) drops per day.[9] To recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuao.

On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After examining both of Peters eyes,

Dr. Tuao instructed the former to taper down[10] the dosage of Maxitrol, because the EKC in his right eye had already

resolved. Dr. Tuao specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually;
otherwise, the EKC might recur.[11]

Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao for another check-up

on 6 October 1988. Dr. Tuao examined Peters eyes and found that the right eye had once more developed EKC. So,
Dr. Tuao instructed Peter to resume the use of Maxitrol at six (6) drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter was

told by Dr. Tuano to take, instead, Blephamide[12]another steroid-based medication, but with a lower concentration, as

substitute for the unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day for five
(5) days; and then just once a day.[13]

Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging severe eye pain,

feeling as if his eyes were about to pop-out, a headache and blurred vision. Dr. Tuao examined Peters eyes and

discovered that the EKC was again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum
dosage of Blephamide.

Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr. Tuaos examination showed

that only the periphery of Peters right eye was positive for EKC; hence, Dr. Tuao prescribed a lower dosage
of Blephamide.

It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the accompanying literature
of Maxitrol and found therein the following warning against the prolonged use of such steroids:

WARNING:

Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity
and fields of vision, and posterior, subcapsular cataract formation. Prolonged use may suppress the
host response and thus increase the hazard of secondary ocular infractions, in those diseases causing
thinning of the cornea or sclera, perforations have been known to occur with the use of topical
steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance existing
infection. If these products are used for 10 days or longer, intraocular pressure should be routinely
monitored even though it may be difficult in children and uncooperative patients.

Employment of steroid medication in the treatment of herpes simplex requires great caution.

xxxx

ADVERSE REACTIONS:
 Adverse reactions have occurred with steroid/anti-infective combination drugs which can be
attributed to the steroid component, the anti-infective component, or the combination. Exact incidence
figures are not available since no denominator of treated patients is available.

Reactions occurring most often from the presence of the anti-infective ingredients are allergic
sensitizations. The reactions due to the steroid component in decreasing order to frequency are
elevation of intra-ocular pressure (IOP) with possible development of glaucoma, infrequent optic nerve
damage; posterior subcapsular cataract formation; and delayed wound healing.

Secondary infection: The development of secondary has occurred after use of combination
containing steroids and antimicrobials. Fungal infections of the correa are particularly prone to develop
coincidentally with long-term applications of steroid. The possibility of fungal invasion must be
considered in any persistent corneal ulceration where steroid treatment has been used.

Secondary bacterial ocular infection following suppression of host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of feeling worse. [14] It appeared that

the EKC had spread to the whole of Peters right eye yet again. Thus, Dr. Tuao instructed Peter to resume the use

of Maxitrol. Petitioners averred that Peter already made mention to Dr. Tuao during said visit of the above-quoted

warning against the prolonged use of steroids, but Dr. Tuao supposedly brushed aside Peters concern as mere
paranoia, even assuring him that the former was taking care of him (Peter).

Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao, Peter continued to suffer pain
in his right eye, which seemed to progress, with the ache intensifying and becoming more frequent.

Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed that

Peters right eye appeared to be bloody and swollen.[15] Thus, spouses Peter and Fatima rushed to the clinic of Dr.

Tuao. Peter reported to Dr. Tuao that he had been suffering from constant headache in the afternoon and blurring of
vision.

Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the use of a tonometer[16] to verify

the exact intraocular pressure[17] (IOP) of Peters eyes, Dr. Tuao discovered that the tension in Peters right eye

was 39.0 Hg, while that of his left was 17.0 Hg.[18] Since the tension in Peters right eye was way over the normal

IOP, which merely ranged from 10.0 Hg to 21.0 Hg,[19] Dr. Tuao ordered[20] him to immediately discontinue the use

of Maxitrol and prescribed to the latter Diamox[21] and Normoglaucon, instead.[22] Dr. Tuao also required Peter to go
for daily check-up in order for the former to closely monitor the pressure of the latters eyes.

On 15 December 1988, the tonometer reading of Peters right eye yielded a high normal level, i.e., 21.0

Hg. Hence, Dr. Tuao told Peter to continue using Diamox and Normoglaucon. But upon Peters complaint of stomach
pains and tingling sensation in his fingers,[23] Dr. Tuao discontinued Peters use of Diamox.[24]

Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December 1988,

who allegedly conducted a complete ophthalmological examination of Peters eyes. Dr. Batungbacals diagnosis
was Glaucoma[25] O.D.[26] He recommended Laser Trabeculoplasty[27] for Peters right eye.

When Peter returned to Dr. Tuao on 23 December 1988,[28] the tonometer measured the IOP of Peters right

eye to be 41.0 Hg,[29] again, way above normal. Dr. Tuao addressed the problem by advising Peter to resume
taking Diamox along with Normoglaucon.
 During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate
the season with his family because of the debilitating effects of Diamox.[30]

On 28 December 1988, during one of Peters regular follow-ups with Dr. Tuao, the doctor conducted another

ocular routine examination of Peters eyes. Dr. Tuao noted the recurrence of EKC in Peters right eye. Considering,

however, that the IOP of Peters right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance

the treatment of Peters EKC vis--vis the presence of glaucoma in the same eye. Dr. Tuao, thus, referred Peter to

Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in the treatment of glaucoma.[31] Dr.
Tuaos letter of referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept.
2, 1988 because of conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol.
The EKC was recurrent after stopping steroid drops. Around 1 month of steroid treatment, he noted
blurring of vision & pain on the R. however, I continued the steroids for the sake of the EKC. A month
ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I stopped the steroids
immediately and has (sic) been treating him medically.

It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has
recurred and Im in a fix whether to resume the steroid or not considering that the IOP is still
uncontrolled.[32]

On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests were conducted thereat

to evaluate the extent of Peters condition. Dr. Agulto wrote Dr. Tuao a letter containing the following findings and
recommendations:

Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L.
Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox tab every 6h po.

Slit lamp evaluation[33] disclosed subepithelial corneal defect outer OD. There was
circumferential peripheral iris atrophy, OD. The lenses were clear.

Funduscopy[34] showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

Zeiss gonioscopy[35] revealed basically open angles both eyes with occasional PAS,[36] OD.

Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that
we do a baseline visual fields and push medication to lowest possible levels. If I may suggest further, I
think we should prescribe Timolol[37] BID[38] OD in lieu of Normoglaucon. If the IOP is still inadequate,
we may try Depifrin[39] BID OD (despite low PAS). Im in favor of retaining Diamox or similar CAI.[40]

If fields show further loss in say 3 mos. then we should consider trabeculoplasty.

I trust that this approach will prove reasonable for you and Peter.[41]

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos aforementioned letter. Though Peters

right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription

for Timolol B.I.D. so Peter could immediately start using said medication. Regrettably, TimololB.I.D. was out of stock,
so Dr. Tuao instructed Peter to just continue using Diamox and Normoglaucon in the meantime.
 Just two days later, on 2 January 1989, the IOP of Peters right eye remained elevated at 21.0 Hg,[42] as he
had been without Diamox for the past three (3) days.

On 4 January 1989, Dr. Tuao conducted a visual field study[43] of Peters eyes, which revealed that the latter

had tubular vision[44] in his right eye, while that of his left eye remained normal. Dr. Tuao directed Peter to religiously

use the Diamox and Normoglaucon, as the tension of the latters right eye went up even further to 41.0 Hg in just a

matter of two (2) days, in the meantime that Timolol B.I.D. and Depifrin were still not available in the market. Again,
Dr. Tuao advised Peter to come for regular check-up so his IOP could be monitored.

Obediently, Peter went to see Dr. Tuao on the 7 th, 13th, 16th and 20th of January 1989 for check-up and IOP
monitoring.

In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January

1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario

V. Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the treatment of glaucoma and who could
undertake the long term care of Peters eyes.

According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters eyes, the said doctor

informed Peter that his eyes were relatively normal, though the right one sometimes manifested maximum borderline

tension. Dr. Aquino also confirmed Dr. Tuaos diagnosis of tubular vision in Peters right eye. Petitioners claimed that
Dr. Aquino essentially told Peter that the latters condition would require lifetime medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control
the high IOP of his right eye.

Claiming to have steroid-induced glaucoma[45] and blaming Dr. Tuao for the same, Peter, joined by: (1)

Fatima, his spouse[46]; (2) Abbeygail, his natural child[47]; and (3) Gillian, his legitimate child[48] with Fatima, instituted

on 1 September 1992, a civil complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon City. The
case was docketed as Civil Case No. 92-2482.

In their Complaint, petitioners specifically averred that as the direct consequence of [Peters] prolonged use

of Maxitrol, [he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The

elevation of the intra-ocular pressure of [Peters right eye] caused the impairment of his vision which impairment is not
curable and may even lead to total blindness.[49]

Petitioners additionally alleged that the visual impairment of Peters right eye caused him and his family so much

grief. Because of his present condition, Peter now needed close medical supervision forever; he had already

undergone two (2) laser surgeries, with the possibility that more surgeries were still needed in the future; his career

in sports casting had suffered and was continuing to suffer; [50] his anticipated income had been greatly reduced as a

result of his limited capacity; he continually suffered from headaches, nausea, dizziness, heart palpitations, rashes,
chronic rhinitis, sinusitis,[51] etc.; Peters relationships with his spouse and children continued to be strained, as his
condition made him highly irritable and sensitive; his mobility and social life had suffered; his spouse, Fatima, became

the breadwinner in the family;[52] and his two children had been deprived of the opportunity for a better life and
educational prospects. Collectively, petitioners lived in constant fear of Peter becoming completely blind. [53]

In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately

brought about by Dr. Tuaos grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of

three (3) months, without monitoring Peters IOP, as required in cases of prolonged use of said medicine, and

notwithstanding Peters constant complaint of intense eye pain while using the same. Petitioners particularly prayed
that Dr. Tuao be adjudged liable for the following amounts:

1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and

by way of compensation for his impaired vision.

2. The amount of P300,000.00 to spouses Lucas as and

by way of actual damages plus such additional amounts
that may be proven during trial.

3. The amount of P1,000,000.00 as and by way of

moral damages.

4. The amount of P500,000.00 as and by way of

exemplary damages.

5. The amount of P200,000.00 as and by way of

attorneys fees plus costs of suit.[54]

In rebutting petitioners complaint, Dr. Tuao asserted that the treatment made by [him] more than three

years ago has no causal connection to [Peters] present glaucoma or condition. [55] Dr. Tuao explained that [d]rug-

induced glaucoma is temporary and curable, steroids have the side effect of increasing intraocular pressure. Steroids

are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the cornea as a result of

conjunctivitis or sore eyes.[56]Dr. Tuao also clarified that (1) [c]ontrary to [petitioners] fallacious claim, [he] did NOT

continually prescribe the drug Maxitrol which contained steroids for any prolonged period[57] and [t]he truth was the

Maxitrol was discontinued x x x as soon as EKC disappeared and was resumed only when EKC reappeared [58]; (2) the

entire time he was treating Peter, he continually monitored the intraocular pressure of [Peters eyes] by palpating the

eyes and by putting pressure on the eyeballs, and no hardening of the same could be detected, which meant that there

was no increase in the tension or IOP, a possible side reaction to the use of steroid medications; and (3) it was only on

13 December 1988 that Peter complained of a headache and blurred vision in his right eye, and upon measuring the
IOP of said eye, it was determined for the first time that the IOP of the right eye had an elevated value.

But granting for the sake of argument that the steroid treatment of [Peters] EKC caused the steroid induced
glaucoma,[59] Dr. Tuao argued that:

[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is
discontinued, the intraocular pressure automatically is reduced. Thus, [Peters] glaucoma can only be
due to other causes not attributable to steroids, certainly not attributable to [his] treatment of more
than three years ago x x x.
 From a medical point of view, as revealed by more current examination of [Peter], the latters
glaucoma can only be long standing glaucoma, open angle glaucoma, because of the large C:D ratio.
The steroids provoked the latest glaucoma to be revealed earlier as [Peter] remained asymptomatic
prior to steroid application. Hence, the steroid treatment was in fact beneficial to [Peter] as it revealed
the incipient open angle glaucoma of [Peter] to allow earlier treatment of the same. [60]

In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 for insufficiency of
evidence.[61] The decretal part of said Decision reads:

Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence.
The counter claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of plaintiff
in filing the suit.[62]

The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuao was negligent in

his treatment of Peters condition. In particular, the record of the case was bereft of any evidence to establish that the

steroid medication and its dosage, as prescribed by Dr. Tuao, caused Peters glaucoma. The trial court reasoned that

the recognized standards of the medical community has not been established in this case, much less has causation
been established to render [Tuao] liable.[63] According to the RTC:

[Petitioners] failed to establish the duty required of a medical practitioner against which Peter
Pauls treatment by defendant can be compared with. They did not present any medical expert or even
a medical doctor to convince and expertly explain to the court the established norm or duty required of
a physician treating a patient, or whether the non taking (sic) by Dr. Tuao of Peter Pauls pressure a
deviation from the norm or his non-discovery of the glaucoma in the course of treatment constitutes
negligence. It is important and indispensable to establish such a standard because once it is established,
a medical practitioner who departed thereof breaches his duty and commits negligence rendering him
liable. Without such testimony or enlightenment from an expert, the court is at a loss as to what is then
the established norm of duty of a physician against which defendants conduct can be compared with to
determine negligence.[64]

The RTC added that in the absence of any medical evidence to the contrary, this court cannot accept
[petitioners] claim that the use of steroid is the proximate cause of the damage sustained by [Peters] eye.[65]

Correspondingly, the RTC accepted Dr. Tuaos medical opinion that Peter Paul must have been suffering from

normal tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye pressure is

manifested, that the steroid treatment actually unmasked the condition that resulted in the earlier treatment of the

glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiffs Exhibit S even tends to support
them.

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was docketed
as CA-G.R. CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying petitioners
recourse and affirming the appealed RTC Decision. The fallo of the judgment of the appellate court states:

WHEREFORE, the Decision appealed from is AFFIRMED.[66]

 The Court of Appeals faulted petitioners because they

[D]id not present any medical expert to testify that Dr. Tuanos prescription of Maxitrol and Blephamide
for the treatment of EKC on Peters right eye was not proper and that his palpation of Peters right eye
was not enough to detect adverse reaction to steroid. Peter testified that Dr. Manuel Agulto told him
that he should not have used steroid for the treatment of EKC or that he should have used it only for
two (2) weeks, as EKC is only a viral infection which will cure by itself. However, Dr. Agulto was not
presented by [petitioners] as a witness to confirm what he allegedly told Peter and, therefore, the latters
testimony is hearsay. Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to
those facts which he knows of his own personal knowledge, x x x. Familiar and fundamental is the rule
that hearsay testimony is inadmissible as evidence.[67]

Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical judgment, specifically the latters
explanation that:

[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to
the use of steroids, that it was only on December 13, 1989, when Peter complained for the first time of
headache and blurred vision that he observed that the pressure of the eye of Peter was elevated, and it
was only then that he suspected that Peter belongs to the 5% of the population who reacts adversely
to steroids.[68]

Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the
following assignment of errors:

I.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE DECISION OF
THE TRIAL COURT DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE
RESPONDENT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;

II.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE PETITIONERS
COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT
WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST
THE RESPONDENT; AND

III.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT
LIABLE TO THE PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM
ATTORNEYS FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS NEGLIGENCE.[69]

A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in

its Decision and Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals

that the evidence on record is insufficient to establish petitioners entitlement to any kind of damage. Therefore, it could

be said that the sole issue for our resolution in the Petition at bar is whether the Court of Appeals committed reversible

error in affirming the judgment of the RTC that petitioners failed to prove, by preponderance of evidence, their claim
for damages against Dr. Tuao.
 Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the

Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence on record and

pass upon whether there is sufficient basis to establish Dr. Tuaos negligence in his treatment of Peters eye condition.

This question clearly involves a factual inquiry, the determination of which is not within the ambit of this Courts power
of review under Rule 45 of the 1997 Rules Civil Procedure, as amended.[70]

Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in
petitions for review on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not entertained.[71]

Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under

Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the

Court of Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on record.

Although petitioners may not explicitly invoke said exception, it may be gleaned from their allegations and arguments
in the instant Petition.

Petitioners contend, that [c]ontrary to the findings of the Honorable Court of Appeals, [they] were more than

able to establish that: Dr. Tuao ignored the standard medical procedure for ophthalmologists, administered medication

with recklessness, and exhibited an absence of competence and skills expected from him.[72] Petitioners reject the

necessity of presenting expert and/or medical testimony to establish (1) the standard of care respecting the treatment

of the disorder affecting Peters eye; and (2) whether or not negligence attended Dr. Tuaos treatment of Peter,
because, in their words

That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is a simple
case of cause and effect. With mere documentary evidence and based on the facts presented by the
petitioners, respondent can readily be held liable for damages even without any expert testimony. In
any case, however, and contrary to the finding of the trial court and the Court of Appeals, there was a
medical expert presented by the petitioner showing the recklessness committed by [Dr. Tuao] Dr.
Tuao himself. [Emphasis supplied.]

They insist that Dr. Tuao himself gave sufficient evidence to establish his gross negligence that ultimately

caused the impairment of the vision of Peters right eye,[73] i.e., that [d]espite [Dr. Tuaos] knowledge that 5% of the

population reacts adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without first
determining whether or not the (sic) Peter belongs to the 5%.[74]

We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the evidence
on record, and we are accordingly bound by the findings of fact made therein.

Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos negligence in his improper

administration of the drug Maxitrol; thus, [the latter] should be liable for all the damages suffered and to be suffered

by [petitioners].[75] Clearly, the present controversy is a classic illustration of a medical negligence case against a

physician based on the latters professional negligence. In this type of suit, the patient or his heirs, in order to prevail,

is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and
learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient
or his heirs suffered damages.

For lack of a specific law geared towards the type of negligence committed by members of the medical

profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code,
which states that:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of
this Chapter.

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship

between the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1)

duty; (2) breach; (3) injury; and (4) proximate causation, [76] must be established by the plaintiff/s. All the four (4)
elements must co-exist in order to find the physician negligent and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And in

accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill

possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill

in the treatment of the patient.[77] Thus, in treating his patient, a physician is under a duty to [the former] to exercise

that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line
of practice ordinarily possess and exercise in like cases.[78] Stated otherwise, the physician has the duty to use at least
the same level of care that any other reasonably competent physician would use to treat the condition under similar
circumstances.

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because
the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field. [79]

There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending

physician when the patient is injured in body or in health [and this] constitutes the actionable malpractice. [80] Proof

of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient

failed to meet the standard level of care, skill and diligence which physicians in the same general neighborhood and in
the same general line of practice ordinarily possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal

connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that

there may be a recovery for an injury, it must be shown that the injury for which recovery is sought must be the

legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and

natural sequence of events, unbroken by intervening efficient causes;[81] that is, the negligence must be the proximate

cause of the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence,

unbroken by any efficient intervening cause, produces the injury, and without which the result would not have
occurred.[82]
 Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the

injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert

testimony, because the question of whether the alleged professional negligence caused [the patients] injury is generally

one for specialized expert knowledge beyond the ken of the average layperson; using the specialized knowledge and

training of his field, the experts role is to present to the [court] a realistic assessment of the likelihood that [the
physicians] alleged negligence caused [the patients] injury.[83]

From the foregoing, it is apparent 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 [or surgeons] stems from the formers realization

that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently
evaluating;[84] hence, the indispensability of expert testimonies.

In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuao and

Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore eyes.

Admittedly, Dr. Tuao, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent

EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective

steroid combination in sterile form for topical application.[85] It is the drug which petitioners claim to have caused Peters
glaucoma.

However, as correctly pointed out by the Court of Appeals, [t]he onus probandi was on the patient to establish

before the trial court that the physicians ignored standard medical procedure, prescribed and administered medication

with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly

situated.[86] Unfortunately, in this case, there was absolute failure on the part of petitioners to present any expert

testimony to establish: (1) the standard of care to be implemented by competent physicians in treating the same

condition as Peters under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed in his duty to

exercise said standard of care that any other competent physician would use in treating the same condition as Peters

under similar circumstances; and (3) that the injury or damage to Peters right eye, i.e., his glaucoma, was the result

of his use of Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first element alone is already fatal to
their cause.

Petitioners maintain that Dr. Tuao failed to follow in Peters case the required procedure for the prolonged use

of Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be precise, what is

the standard operating procedure when ophthalmologists prescribe steroid medications which, admittedly, carry some
modicum of risk?

Absent a definitive standard of care or diligence required of Dr. Tuao under the circumstances, we have no

means to determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This Court

has no yardstick upon which to evaluate or weigh the attendant facts of this case to be able to state with confidence
that the acts complained of, indeed, constituted negligence and, thus, should be the subject of pecuniary reparation.
 Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined first whether Peter was

a steroid responder.[87] Yet again, petitioners did not present any convincing proof that such determination is actually

part of the standard operating procedure which ophthalmologists should unerringly follow prior to prescribing steroid
medications.

In contrast, Dr. Tuao was able to clearly explain that what is only required of ophthalmologists, in cases such

as Peters, is the conduct of standard tests/procedures known as ocular routine examination,[88] composed of five (5)

tests/procedures specifically, gross examination of the eyes and the surrounding area; taking of the visual acuity of

the patient; checking the intraocular pressure of the patient; checking the motility of the eyes; and using

ophthalmoscopy on the patients eye and he did all those tests/procedures every time Peter went to see him for follow-
up consultation and/or check-up.

We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he cannot determine

immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out a course

of treatment recognized as correct by the standards of the medical profession. It must be remembered that a physician

is not an insurer of the good result of treatment. The mere fact that the patient does not get well or that a bad result

occurs does not in itself indicate failure to exercise due care. [89] The result is not determinative of the performance [of
the physician] and he is not required to be infallible.[90]

Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was

already using the same medication when he first came to see Dr. Tuao on 2 September 1988 and had exhibited no
previous untoward reaction to that particular drug. [91]

Also, Dr. Tuao categorically denied petitioners claim that he never monitored the tension of Peters eyes while

the latter was on Maxitrol. Dr. Tuao testified that he palpated Peters eyes every time the latter came for a check-up

as part of the doctors ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaos regular conduct

of examinations and tests to ascertain the state of Peters eyes negate the very basis of petitioners complaint for
damages. As to whether Dr. Tuaos actuations conformed to the standard of care and diligence required in like
circumstances, it is presumed to have so conformed in the absence of evidence to the contrary.

Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peters condition, the

causal connection between Dr. Tuaos supposed negligence and Peters injury still needed to be established. The

critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which

the evidence established and the plaintiffs injuries.[92] The plaintiff must plead and prove not only that he has been

injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice

action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability
based upon competent expert testimony.[93]

The causation between the physicians negligence and the patients injury may only be established by the

presentation of proof that Peters glaucoma would not have occurred but for Dr. Tuaos supposed negligent
conduct. Once more, petitioners failed in this regard.

Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patients IOP. In fact, this

was the reason why he made it a point to palpate Peters eyes every time the latter went to see him -- so he could

monitor the tension of Peters eyes. But to say that said medication conclusively caused Peters glaucoma is purely

speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by an almost

complete absence of symptoms and a chronic, insidious course. [94] In open-angle glaucoma, halos around lights and

blurring of vision do not occur unless there has been a sudden increase in the intraocular vision. [95] Visual acuity remains

good until late in the course of the disease.[96] Hence, Dr. Tuao claims that Peters glaucoma can only be long standing
x x x because of the large C:D[97] ratio, and that [t]he steroids provoked the latest glaucoma to be revealed earlier
was a blessing in disguise as [Peter] remained asymptomatic prior to steroid application.

Who between petitioners and Dr. Tuao is in a better position to determine and evaluate the necessity of
using Maxitrol to cure Peters EKC vis--vis the attendant risks of using the same?

That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do

not dispute Dr. Tuaos qualifications that he has been a physician for close to a decade and a half at the time Peter

first came to see him; that he has had various medical training; that he has authored numerous papers in the field of

ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies

various teaching posts (at the time of the filing of the present complaint, he was the Chair of the Department of

Ophthalmology and an Associate Professor at the University of the Philippines-Philippine General Hospital and St. Lukes

Medical Center, respectively); and that he held an assortment of positions in numerous medical organizations like the

Philippine Medical Association, Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine

Society of Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of Philippine
Ophthalmology Professors, et al.

It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there

is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his

knowledge and skill in attending to his clients, unless the contrary is sufficiently established. [98] In making the judgment

call of treating Peters EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating Peters eyes to monitor

their IOP every time the latter went for a check-up, and he employed the best of his knowledge and skill earned from
years of training and practice.

In contrast, without supporting expert medical opinions, petitioners bare assertions of negligence on Dr. Tuaos
part, which resulted in Peters glaucoma, deserve scant credit.

Our disposition of the present controversy might have been vastly different had petitioners presented a medical

expert to establish their theory respecting Dr. Tuaos so-called negligence. In fact, the record of the case reveals that

petitioners counsel recognized the necessity of presenting such evidence. Petitioners even gave an undertaking to the
RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no follow-through on said undertaking was made.

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the

course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence

shifts to defendant to controvert plaintiffs prima facie case; otherwise, a verdict must be returned in favor of

plaintiff.[99] The party having the burden of proof must establish his case by a preponderance of evidence. [100] The

concept of preponderance of evidence refers to evidence which is of greater weight or more convincing than that which

is offered in opposition to it;[101] in the last analysis, it means probability of truth. It is evidence which is more convincing

to the court as worthy of belief than that which is offered in opposition thereto. [102] Rule 133, Section 1 of the Revised
Rules of Court provides the guidelines for determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance
of evidence. In determining where the preponderance or superior weight of evidence on the issues
involved lies the court may consider all the facts and circumstances of the case, the witnesses manner
of testifying, their intelligence, their means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the probability or improbability of their testimony,
 their interest or want of interest, and also their personal credibility so far as the same legitimately
appear upon the trial. The court may also consider the number of witnesses, though the preponderance
is not necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case

by a preponderance of evidence showing a reasonable connection between Dr. Tuaos alleged breach of duty and the

damage sustained by Peters right eye. This, they did not do. In reality, petitioners complaint for damages is merely

anchored on a statement in the literature of Maxitrol identifying the risks of its use, and the purported comment of Dr.

Agulto another doctor not presented as witness before the RTC concerning the prolonged use of Maxitrol for the
treatment of EKC.

It seems basic that what constitutes proper medical treatment is a medical question that should have been

presented to experts. If no standard is established through expert medical witnesses, then courts have no standard by

which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even

this Court, could not be expected to determine on its own what medical technique should have been utilized for a certain
disease or injury. Absent expert medical opinion, the courts would be dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or malpractice where there is

no evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuao failed to exercise reasonable

care, diligence and skill generally required in medical practice. Dr. Tuaos testimony, that his treatment of Peter

conformed in all respects to standard medical practice in this locality, stands unrefuted. Consequently, the RTC and the

Court of Appeals correctly held that they had no basis at all to rule that petitioners were deserving of the various
damages prayed for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The

assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R.
CV No. 68666, are hereby AFFIRMED. No cost. SO ORDERED.
G.R. No. 126297 February 2, 2010

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 126467

NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya,
Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners,
vs.
THE COURT OF APPEALS and JUAN FUENTES, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 127590

MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

RESOLUTION

CORONA, J.:

With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second motion for reconsideration2urging
referral thereof to the Court en banc and seeking modification of the decision dated January 31, 2007 and resolution
dated February 11, 2008 which affirmed its vicarious and direct liability for damages to respondents Enrique Agana and
the heirs of Natividad Agana (Aganas).

Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc. (AHI),4 and Private 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 cost of health care.

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 banc the motion for prior leave of court and the second motion
for reconsideration of PSI.7

Due to paramount public interest, the Court en banc accepted the referral8 and 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 premises.9

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 substituted by her heirs), in a complaint 10 for damages filed in
the Regional Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil and Dr.
Fuentes neglected to remove from her body two gauzes 11 which were used in the surgery they performed on her on
April 11, 1984 at the Medical City General Hospital. PSI was impleaded as owner, operator and manager of the hospital.

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. 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
reconsideration16 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:

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 2176 34 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
patients 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 prominence 57 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
Natividads 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 Natividads 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 PSIs 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 P15 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 P15
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. 187926 February 15, 2012

Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU BASTAN, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the
most important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a
physician departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the
resulting injury. This Court, as this case would show, cannot and will not let the act go unpunished. 1

This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008 Decision2 of the Court
of Appeals (CA), and its May 19, 2009 Resolution3 in CA-G.R. CR No. 29559, dismissing the appeal and affirming in
toto the June 14, 2005 Decision4 of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty beyond
reasonable doubt of simple imprudence resulting to serious physical injuries.

THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of Investigation (NBI) against the
petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of
professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon
investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for an
emergency medical treatment; that an X-ray of the victims ankle was ordered; that the X-ray result showed no fracture
as read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own examination of
the victim, informed Mrs. Santiago that since it was only the ankle that was hit, there was no need to examine the upper
leg; that eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and misalignment of the right foot;
that Mrs. Santiago brought him back to the hospital; and that the X-ray revealed a right mid-tibial fracture and a linear
hairline fracture in the shaft of the bone.

The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation. Probable cause
was found and a criminal case for reckless imprudence resulting to serious physical injuries, was filed against Dr. Jarcia,
Dr. Bastan and Dr. Pamittan,5 before the RTC, docketed as Criminal Case No. 01-196646.

On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple Imprudence
Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads:

WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN
GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES
and are hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to
indemnify MRS. BELINDA SANTIAGO the amount of P 3,850.00 representing medical expenses without subsidiary
imprisonment in case of insolvency and to pay the costs.

It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for her
arrest, let warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her
apprehension.

SO ORDERED.6

The RTC explained:

After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds
that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the
mind of the Court that accused herein [are] criminally responsible. The Court believes that accused are negligent when
both failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago,
Jr.

However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely
amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which
the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple
imprudence are as follows.

1. that there is lack of precaution on the part of the offender; and

2. that the damage impending to be caused is not immediate of the danger is not clearly manifest.

Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to physical
injuries. Under Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its minimum period. 7

Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads:
This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction against
the accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of
imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is
voluntary; (3) that it be without malice; (4) that material damage results from the imprudence; and (5) that there is
inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation,
degree of intelligence, physical condition, and other circumstances regarding persons, time and place.

Whether or not Dr. Jarcia and Dr. Bastan had committed an "inexcusable lack of precaution" in the treatment of their
patient is to be determined according to the standard of care observed by other members of the profession in good
standing under similar circumstances, bearing in mind the advanced state of the profession at the time of treatment or
the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that,
in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances.

In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence,
and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well
as a causal connection of such breach and the resulting injury of his patient. The connection between the negligence
and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other
words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists, cannot
create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an injury is
that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury
and without which the result would not have occurred.

In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal
connection between their failure to diagnose the fracture and the injury sustained by Roy.

We are not convinced.

The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the
accused-appellants to correctly diagnose the extent of the injury sustained by Roy.

For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa
loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks
for itself. The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of
the person who controls the instrumentality causing the injury in the absence of some explanation by the accused-
appellant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and, on the
basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident
itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.

The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latters ordeal at
the hospital. She testified as follows:

Fiscal Formoso:

Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go
home or not?

A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the
wounds of my son.

Q: And what did she [tell] you?

A: They told me they will call a resident doctor, sir.

xxx xxx xxx

Q: Was there a resident doctor [who] came?

A: Yes, Sir. Dra. Bastan arrived.

Q: Did you tell her what you want on you to be done?

A: Yes, sir.

Q: What did you [tell] her?

A: I told her, sir, while she was cleaning the wounds of my son, are you not going to x-ray up to the knee because my
son was complaining pain from his ankle up to the middle part of the right leg.

Q: And what did she tell you?

A: According to Dra. Bastan, there is no need to x-ray because it was the ankle part that was run over.
Q: What did you do or tell her?

A: I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of my son.

Q: So you mean to say there was no treatment made at all?

A: None, sir.

A: I just listened to them, sir. And I just asked if I will still return my son.

Q: And you were present when they were called?

A: Yes, sir.

Q: And what was discussed then by Sis. Retoria?

A: When they were there they admitted that they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

In the above requisites, the fundamental element is the "control of the instrumentality" which caused the damage. Such
element of control must be shown to be within the dominion of the accused-appellants. In order to have the benefit of
the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable and must
establish that the essential elements of the doctrine were present in a particular incident. The early treatment of the
leg of Roy would have lessen his suffering if not entirely relieve him from the fracture. A boy of tender age whose leg
was hit by a vehicle would engender a well-founded belief that his condition may worsen without proper medical
attention. As junior residents who only practice general surgery and without specialization with the case consulted before
them, they should have referred the matter to a specialist. This omission alone constitutes simple imprudence on their
part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part of his leg, they refused to do
so. The mother would not have asked them if they had no exclusive control or prerogative to request an x-ray test.
Such is a fact because a radiologist would only conduct the x-ray test upon request of a physician.

The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on his
personal knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan?

A: I would say at that stage, yes. Because they have presented the patient and the history. "At sabi nila, nadaanan lang
po ito." And then, considering their year of residency they are still junior residents, and they are not also orthopedic
residents but general surgery residents, its entirely different thing. Because if you are an orthopedic resident, I am not
trying to saybut if I were an orthopedic resident, there would be more precise and accurate decision compare to a
general surgery resident in so far as involved.

Q: You mean to say there is no supervisor attending the emergency room?

A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from
a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the
consultant on duty. Now at that time, I dont [know] why they dont.Because at that time, I think, it is the decision.
Since the x-rays.

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and
acts of physicians, external appearances, and manifest conditions which are observable by any one may be given by
non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund
of common knowledge can determine the proper standard of care. Where common knowledge and experience teach
that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence
may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred. In the case at bench, we give credence
to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able
to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such
as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to
secure results and the occurrence of something more unusual and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in that particular practice. The latter circumstance is the
primordial issue that confronted this Court and we find application of the doctrine of res ipsa loquitur to be in order.

WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the
trial court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical
injuries is hereby AFFIRMED in toto.

SO ORDERED.8

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution.

Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following

GROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED IN NOT

HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL
INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL
ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING
HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE
THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS
TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING

PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR.
CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO SUBJECT
THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF
THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE
EVIDENCE ON RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND SUFFERING,
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE
DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO
IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS,
AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE
WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY
(PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP

EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING
THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE EMERGENCY
ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS OF THE

CRIME CHARGED."9

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is applicable
in this case; and [2] whether or not the petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records,
however, the Court is not convinced that the petitioners are guilty of criminal negligence complained of. The Court is
also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this particular case.

As to the Application of The Doctrine of Res Ipsa Loquitur

This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the management of
the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that
the accident arose from want of care." The Black's Law Dictionary defines the said doctrine. Thus:

The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof
that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which
ordinarily does not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the
alleged wrongdoer may be inferred from the mere fact that the accident happened provided the character of the accident
and circumstances attending it lead reasonably to belief that in the absence of negligence it would not have occurred
and that thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.
Under this doctrine, the happening of an injury permits an inference of negligence where plaintiff produces substantial
evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of
defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care
had been used.10

The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The
doctrine, however, is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The
rule, when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the
requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall
be prima facie evidence thereof and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked
when and only when, under the circumstances involved, direct evidence is absent and not readily available. 11

The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action
or contribution of the person injured.12

In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests that were supposed to be
undergone by him to determine the extent of the injury suffered were not under the exclusive control of Drs. Jarcia and
Bastan. It was established that they are mere residents of the Manila Doctors Hospital at that time who attended to the
victim at the emergency room.13 While it may be true that the circumstances pointed out by the courts below seem
doubtless to constitute reckless imprudence on the part of the petitioners, this conclusion is still best achieved, not
through the scholarly assumptions of a layman like the patients mother, but by the unquestionable knowledge of expert
witness/es. As to whether the petitioners have exercised the requisite degree of skill and care in treating patient Roy,
Jr. is generally a matter of expert opinion.

As to Dr. Jarcia and Dr. Bastans negligence

The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being repetitious,
the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 14

Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage
results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such
act.15

The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2) that the
damage impending to be caused is not immediate or the danger is not clearly manifest.16

In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless imprudence or
simple negligence. The elements thereof were not proved by the prosecution beyond reasonable doubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to some medical
procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether
the injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call and their diagnosis or
appreciation of the condition of the victim at the time they assessed him. Thus:

Q: Will you please tell us, for the record, doctor, what is your specialization?

A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric orthopedic
for two (2) years.

Q: In June 1998, doctor, what was your position and what was your specialization at that time?

A: Since 1980, I have been specialist in pediatric orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as first step?

A: As usual, I examined the patient physically and, at that time as I have said, the patient could not walk so I [began]
to suspect that probably he sustained a fracture as a result of a vehicular accident. So I examined the patient at that
time, the involved leg, I dont know if that is left or right, the involved leg then was swollen and the patient could not
walk, so I requested for the x-ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to be examined?

A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal tinial, we usually x-
ray the entire extremity.

Q: And what was the result?

A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.

Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters.

Q: Mid-tibial, will you please point to us, doctor, where the tibial is?

(Witness pointing to his lower leg)

A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the fibula. The bigger
one is the one that get fractured.

Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such injury?

A: Yes, actually, that was a routine part of our examination that once a patient comes in, before we actually examine
the patient, we request for a detailed history. If it is an accident, then, we request for the exact mechanism of injuries.

Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you?

A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident.

Q: Who did you interview?

A: The mother.

Q: How about the child himself, Alfonso Santiago, Jr.?

A: Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So, it was the
mother that I interviewed.

Q: And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.?

A: No, not actually medication. I was informed that this patient was seen initially at the emergency room by the two
(2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my residents who
were [on] duty at the emergency room.

A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from
a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the
consultant on duty. Now at that time, I dont why they dont Because at that time, I think, it is the decision. Since
the x-rays

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.

A: They are general surgeon residents. You have to man[x] the emergency room, including neurology,
orthopedic, general surgery, they see everything at the emergency room.

Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room, you would have
subjected the entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan is the same?

A: I could not directly say yes, because it would still depend on my examination, we cannot subject the whole body for
x-ray if we think that the damaged was only the leg.

Q: Not the entire body but the entire leg?

A: I think, if my examination requires it, I would.

Q: So, you would conduct first an examination?

A: Yes, sir.

Q: And do you think that with that examination that you would have conducted you would discover the necessity
subjecting the entire foot for x-ray?

A: It is also possible but according to them, the foot and the ankle were swollen and not the leg, which sometimes
normally happens that the actual fractured bone do not get swollen.

xxxx

Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the history
that was told to you is the region that was hit is the region of the foot, will the doctor subject the entire leg
for x-ray?

A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider the
kind of fracture that the patient sustained would you say the exact mechanism of injury. For example spiral,
"paikot yung bale nya," so it was possible that the leg was run over, the patient fell, and it got twisted.
Thats why the leg seems to be fractured.17 [Emphases supplied]
It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy Jr. As
residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical protocol in
treating leg fractures and in attending to victims of car accidents. There was, however, no precise evidence and scientific
explanation pointing to the fact that the delay in the application of the cast to the patients fractured leg because of
failure to immediately diagnose the specific injury of the patient, prolonged the pain of the child or aggravated his
condition or even caused further complications. Any person may opine that had patient Roy Jr. been treated properly
and given the extensive X-ray examination, the extent and severity of the injury, spiral fracture of the mid-tibial part
or the bigger bone of the leg, could have been detected early on and the prolonged pain and suffering of Roy Jr. could
have been prevented. But still, that opinion, even how logical it may seem would not, and could not, be enough basis
to hold one criminally liable; thus, a reasonable doubt as to the petitioners guilt.

Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by the
dictates of justice which hold inviolable the right of the accused to be presumed innocent until proven guilty beyond
reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently attend to Roy
Jr.s medical needs when the latter was rushed to the ER, for while a criminal conviction requires proof beyond
reasonable doubt, only a preponderance of evidence is required to establish civil liability. Taken into account also was
the fact that there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true that the actual,
direct, immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular
accident when he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse themselves
from any liability. If this would be so, doctors would have a ready defense should they fail to do their job in attending
to victims of hit-and-run, maltreatment, and other crimes of violence in which the actual, direct, immediate, and
proximate cause of the injury is indubitably the act of the perpetrator/s.

In failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr. Jarcia and Dr.
Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they
did not have the capacity to make such thorough evaluation at that stage, they should have referred the patient to
another doctor with sufficient training and experience instead of assuring him and his mother that everything was all
right.

This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient relationship existed
between them and patient Roy Jr., since they were not his attending physicians at that time. They claim that they were
merely requested by the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly, this issue
was never raised during the trial at the RTC or even before the CA. The petitioners, therefore, raise the want of doctor-
patient relationship for the first time on appeal with this Court. It has been settled that "issues raised for the first time
on appeal cannot be considered because a party is not permitted to change his theory on appeal. To allow him to do so
is unfair to the other party and offensive to the rules of fair play, justice and due process." 18 Stated differently, basic
considerations of due process dictate that theories, issues and arguments not brought to the attention of the trial court
need not be, and ordinarily will not be, considered by a reviewing court.19

Assuming again for the sake of argument that the petitioners may still raise this issue of "no physicianpatient
relationship," the Court finds and so holds that there was a "physicianpatient" relationship in this case.

In the case of Lucas v. Tuao,20 the Court wrote that "[w]hen a patient engages the services of a physician, a physician-
patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that
he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will
employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under
a duty to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the
same general line of practice ordinarily possess and exercise in like cases. Stated otherwise, the physician has the
obligation to use at least the same level of care that any other reasonably competent physician would use to treat the
condition under similar circumstances."

Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably, the latter and
his mother went to the ER for an immediate medical attention. The petitioners allegedly passed by and were requested
to attend to the victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on duty at the
ER).21 They obliged and examined the victim, and later assured the mother that everything was fine and that they could
go home. Clearly, a physician-patient relationship was established between the petitioners and the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to attend to
Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a case
like this, they should have not made a baseless assurance that everything was all right. By doing so, they deprived Roy
Jr. of adequate medical attention that placed him in a more dangerous situation than he was already in. What petitioners
should have done, and could have done, was to refer Roy Jr. to another doctor who could competently and thoroughly
examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states:

A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits
that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure to fulfill his
obligation to his patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and
inexcusable.22

Established medical procedures and practices, though in constant instability, are devised for the purpose of preventing
complications. In this case, the petitioners failed to observe the most prudent medical procedure under the
circumstances to prevent the complications suffered by a child of tender age.
As to the Award of Damages

While no criminal negligence was found in the petitioners failure to administer the necessary medical attention to Roy
Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the taxi driver who ran
over the foot or leg of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of P 3,850.00, as expenses incurred by patient Roy Jr., was adequately supported
by receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child at that
time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of P 100,000.00
and P50,000.00, respectively, is proper in this case.

It is settled that moral damages are not punitive in nature, but are designed to compensate and alleviate in some way
the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration of the psychological or
emotional status quo ante, the award of moral damages is designed to compensate emotional injury suffered, not to
impose a penalty on the wrongdoer.23

The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount.1wphi1 Article 2229 of
the Civil Code provides that exemplary damages may be imposed by way of example or correction for the public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008
is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou
Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the
amounts of:

(1) P 3,850.00 as actual damages;

(2) P 100,000.00 as moral damages;

(3) P 50,000.00 as exemplary damages; and

(4) Costs of the suit.

with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12%
interest per annum from the finality of judgment until fully paid. SO ORDERED.
R. No. 192123 March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence resulting
in serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had been part of the
team of anesthesiologists during the surgical pull-through operation conducted on a three-year old patient born with an
imperforate anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after his birth, Gerald
underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal
wall,3 enabling him to excrete through a colostomy bag attached to the side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through operation.5Dr.
Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceo, Dr. Donatella Valea and Dr.
Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum
(Dr. Solidum).6 During the operation, Gerald experienced bradycardia,7 and went into a coma.8His coma lasted for two
weeks,9 but he regained consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for reckless
imprudence resulting in serious physical injuries with the City Prosecutors Office of Manila against the attending
physicians.12

Upon a finding of probable cause, the City Prosecutors Office filed an information solely against Dr. Solidum, 13alleging:

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an anesthesiologist at
the Ospital ng Maynila, Malate, this City, and as such was tasked to administer the anesthesia on three-year old baby
boy GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been born with an
imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull through operation], did then
and there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of his judgment
would dictate under said circumstance, by failing to monitor and regulate properly the levels of anesthesia administered
to said GERALD ALBERT GERCAYO and using 100% halothane and other anesthetic medications, causing as a
consequence of his said carelessness and negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and
consequently a defect called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering
said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage and prejudice.

Contrary to law.14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to Section
5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable
doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of TWO (2) MONTHS
and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision
correccional as maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as moral damages and P100,000.00 as
exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the RTC excluded them from
solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2) months and one
(1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision correccional as
maximum and to indemnify jointly and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount
of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled. 19
 Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur.

xxxx

x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by the OSG,
the accused himself testified that pre-operation tests were conducted to ensure that the child could withstand the
surgery. Except for his imperforate anus, the child was healthy. The tests and other procedures failed to reveal that he
was suffering from any known ailment or disability that could turn into a significant risk. There was not a hint that the
nature of the operation itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a failure in the
proper administration of anesthesia, the gravamen of the charge in this case. The High Court elucidates in Ramos vs.
Court of Appeals 321 SCRA 584

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care.

Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res
ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it
occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under the custody and management of the defendant without
need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because
there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered
by him.

The lower court has found that such a nexus exists between the act complained of and the injury sustained, and in line
with the hornbook rules on evidence, we will afford the factual findings of a trial court the respect they deserve in the
absence of a showing of arbitrariness or disregard of material facts that might affect the disposition of the case. People
v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of
negligence, it need not offend due process, as long as the accused is afforded the opportunity to go forward with his
own evidence and prove that he has no criminal intent. It is in this light not inconsistent with the constitutional
presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010. 22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN
UPHOLDING THE PETITIONERS CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL COURTS
OPINION, AND NOT ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER.
FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS
THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE ALLEGATIONS OF
THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS PRESUMPTIVE
CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN
THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND
NO OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF,
WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE.
 III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE BEING NO
NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE,
AND NO OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL
AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur was
applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa loquitur
means that "where the thing which causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those who have the management use proper
care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from
want of care."24 It is simply "a recognition of the postulate that, as a matter of common knowledge and experience,
the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who
controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged
with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience
or common knowledge, negligence may be deduced from the mere occurrence of the accident itself.

Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge." 25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a mode of proof or
a mere procedural convenience. The doctrine, when applicable to the facts and circumstances of a given case, is not
meant to and does not dispense with the requirement of proof of culpable negligence against the party charged. It
merely determines and regulates what shall be prima facie evidence thereof, and helps the plaintiff in proving a
breach of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and exhaustively
explained in Ramos v. Court of Appeals,28 where the Court said

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when
the circumstances attendant upon the harm are themselves of such a character as to justify an inference of
negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of
law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill
and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses.
Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon
proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to produce expert medical testimony to establish
the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in
the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in
the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth
while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff
was under the influence of anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily have followed if due care
had been exercised. A distinction must be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary
incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary
professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man
as the negligent cause or causes of the untoward consequence. If there was such extraneous intervention, the
doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of
exculpation, if he could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be satisfied, to wit: (1)
the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must
not have been due to any voluntary action or contribution of the person injured. 29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be
conceded without difficulty that the second and third elements were present, considering that the anesthetic agent
and the instruments were exclusively within the control of Dr. Solidum, and that the patient, being then unconscious
during the operation, could not have been guilty of contributory negligence, the first element was undeniably wanting.
Luz delivered Gerald to the care, custody and control of his physicians for a pull-through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he
experienced bradycardia during the operation, causing loss of his senses and rendering him immobile. Hypoxia, or the
insufficiency of oxygen supply to the brain that caused the slowing of the heart rate, scientifically termed as
bradycardia, would not ordinarily occur in the process of a pull-through operation, or during the administration of
anesthesia to the patient, but such fact alone did not prove that the negligence of any of his attending physicians,
including the anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to him had sensed in
the course of the operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting
them to administer atropine to the patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31 relevant portions of the
decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty. Early in the
morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection of
the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone
call from the hospital, advising him that the patient was having respiratory difficulty. The doctor ordered that oxygen
be administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second
time to advise the doctor that the patient was not responding. The doctor ordered that a medicine be administered,
and he departed for the hospital. When he arrived, the physician who had been on call at the hospital had begun
attempts to revive the patient. Dr. Brigham joined him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of asphyxia,
as a result of a sudden, acute closing of the air passage. He also found that the air passage had been adequate to
maintain life up to 2 or 3 minutes prior to death. He did not know what caused the air passage to suddenly close.

xxxx

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies of
asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not in
itself prove that the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474
P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42
Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case Res Ipsa Loquitur 24:10 (1972). The
evidence presented is insufficient to establish the first element necessary for application of res ipsa loquitur doctrine.
The acute closing of the patients air passage and his resultant asphyxiation took place over a very short period of
time. Under these circumstances it would not be reasonable to infer that the physician was negligent. There was no
palpably negligent act. The common experience of mankind does not suggest that death would not be expected
without negligence. And there is no expert medical testimony to create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA correctly
affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care,
precaution, and vigilance that the circumstances justly demand, whereby such other person suffers injury. 32Reckless
imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform
such act.33

Dr. Solidums conviction by the RTC was primarily based on his failure to monitor and properly regulate the level of
anesthetic agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his report
except for an observation which, to all intents and purposes, has become the storm center of this dispute. He wanted
to correct one piece of information regarding the dosage of the anesthetic agent administered to the child. He declared
that he made a mistake in reporting a 100% halothane and said that based on the records it should have been 100%
oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record A portion of the chart in the record was marked as Exhibit 1-A and 1-B to indicate
the administration at intervals of the anesthetic agent.

(b) the clinical abstract A portion of this record that reads as follows was marked Exhibit 3A. 3B
Approximately 1 hour and 45 minutes through the operation, patient was noted to have bradycardia (CR = 70)
and ATSO4 0.2 mg was immediately administered. However, the bradycardia persisted, the inhalational agent
was shut off, and the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg was given.
However, the patient did not respond until no cardiac rate can be auscultated and the surgeons were immediately
told to stop the operation. The patient was put on a supine position and CPR was initiated. Patient was given 1
amp of epinephrine initially while continuously doing cardiac massage still with no cardiac rate appreciated;
another ampule of epinephrine was given and after 45 secs, patients vital signs returned to normal. The entire
resuscitation lasted approximately 3-5 mins. The surgeons were then told to proceed to the closure and the
childs vital signs throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100% oxygen and
another dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it as 100% halothane.
He was asked to read the anesthesia record on the percentage of the dosage indicated, but he could only sheepishly
note I cant understand the number. There are no clues in the clinical abstract on the quantity of the anesthetic agent
used. It only contains the information that the anesthetic plan was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and 45 minutes after the operation
began, bradycardia occurred after which the inhalational agent was shut off and the patient administered with 100%
oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was
the pure oxygen introduced after something went amiss in the operation and the halothane itself was reduced or shut
off.

The key question remains what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertidos admission is that there was no overdose of the anesthetic agent, and the accused Dr.
Solidum stakes his liberty and reputation on this conclusion. He made the assurance that he gave his patient the utmost
medical care, never leaving the operating room except for a few minutes to answer the call of nature but leaving behind
the other members of his team Drs. Abella and Razon to monitor the operation. He insisted that he administered only
a point 1% not 100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be enough
to show that she assisted in the operation and was therefore conversant of the things that happened. She revealed that
they were using a machine that closely monitored the concentration of the agent during the operation.

But most compelling is Dr. Solidums interpretation of the anesthesia record itself, as he takes the bull by the horns, so
to speak. In his affidavit, he says, reading from the record, that the quantity of halothane used in the operation is one
percent (1%) delivered at time intervals of 15 minutes. He studiedly mentions the concentration of halothane as
reflected in the anesthesia record (Annex D of the complaint-affidavit) is only one percent (1%) The numbers indicated
in 15 minute increments for halothane is an indication that only 1% halothane is being delivered to the patient Gerard
Gercayo for his entire operation; The amount of halothane delivered in this case which is only one percent cannot be
summated because halothane is constantly being rapidly eliminated by the body during the entire operation.

xxxx

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr. Vertido on the
question of the dosage of the anesthetic used on the child would not really validate the non-guilt of the anesthesiologist.
Led to agree that the halothane used was not 100% as initially believed, he was nonetheless unaware of the implications
of the change in his testimony. The court observed that Dr. Vertido had described the condition of the child as hypoxia
which is deprivation of oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a
failing central nervous system such as stupor, loss of consciousness, decrease in heart rate, loss of usual acuity and
abnormal motor function, are manifestations of this condition or syndrome. But why would there be deprivation of
oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court, whether oxygen or halothane was the
object of mistake, the detrimental effects of the operation are incontestable, and they can only be led to one conclusion
if the application of anesthesia was really closely monitored, the event could not have happened.34

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt because the circumstances
cited by the CA were insufficient to establish that Dr. Solidum had been guilty of inexcusable lack of precaution in
monitoring the administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v. Court of
Appeals35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be
determined according to the standard of care observed by other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state
of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in
accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment
and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary
to support the conclusion as to causation.

xxxx

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a
reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal
connection of such breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the
attending physician was absolved of liability for the death of the complainants wife and newborn baby, this Court held
that:

"In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is
sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury
must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the
negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred."

An action upon medical negligence whether criminal, civil or administrative calls for the plaintiff to prove by
competent evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient, as
created by the physician-patient relationship, to act in accordance with the specific norms or standards established by
his profession; (b) the breach of the duty by the physicians failing to act in accordance with the applicable standard of
care; (3) the causation, i.e., there must be a reasonably close and causal connection between the negligent act or
omission and the resulting injury; and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly
referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear
definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases are
highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge necessary
to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be determined
from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care by
which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under similar
circumstances. The specialty standard of care may be higher than that required of the general practitioner.37

The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice
may be measured, and it does not depend, therefore, on any individual physicians own knowledge either. In attempting
to fix a standard by which a court may determine whether the physician has properly performed the requisite duty
toward the patient, expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier
of fact, ultimately determines the standard of care, after listening to the testimony of all medical experts.38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to
the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to
determine whether the first three elements of a negligence and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the Chairman of
the Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that investigated the complaint
against Dr. Solidum, his testimony mainly focused on how his Committee had conducted the investigation. 39 Even then,
the report of his Committee was favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation and was
administered general anesthesia by a team of anesthesia residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The
anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal reflex, administered atropine to
block it but despite the administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt
resuscitative measures were administered and spontaneous cardiac function re-established in less than five (5) minutes
and that oxygen was continuously being administered throughout, unfortunately, as later become manifest, patient
suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find that the
same were all in accordance with the universally accepted standards of medical care and there is no evidence of any
fault or negligence on the part of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented as a
Prosecution witness, but his testimony concentrated on the results of the physical examination he had conducted on
Gerald, as borne out by the following portions of his direct examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case, halothane was
used as a sole anesthetic agent.

xxxx
Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after the
operation, the patient experienced a bradycardia or slowing of heart rate, now as a doctor, would you be able to tell
this Honorable Court as to what cause of the slowing of heart rate as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some reason
one way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, were talking about possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate, now what is the
immediate cause of the slowing of the heart rate of a person?

WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal reflex in
the neck wherein the vagal receptors are located at the lateral part of the neck, when you press that, you produce the
slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by the patient,
would that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen
level in the blood, the normal thing for the heart is to pump or to do not a bradycardia but a to counter act the
Hypoxia that is being experienced by the patient

(sic).

xxxx

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other anesthetic
medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record and the
factors that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your last
paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production of
Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell me
where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can show to
this Honorable Court and even to this representation the word "one hundred" or 1-0-0 and then call me.

xxxx

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even the
attention of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA Im asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or no?

WITNESS Im trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily, because this is just a xerox
copy presented by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum to the patient is
1% only so may we request that this portion, temporarily your Honor, we are marking this anesthesia record as our
Exhibit 1 and then this 1% Halothane also be bracketed and the same be marked as our Exhibit "1-A".
xxxx

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors that contributed to
Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call hypoxia and according
to you, when this Gerald suffered hypoxia, there are other factors that might lead to this Hypoxia at the time of this
operation is that correct?

WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to operations being conducted
by the doctor at the time when the operation is being done might also contribute to that hypoxia is that correct?

A That is a possibility also.

xxxx

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald might
[be] exposed to some risk is that correct?

A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Geralds operation for his imperforate anus,
considered a major operation, had exposed him to the risk of suffering the same condition.43 He then corrected his
earlier finding that 100% halothane had been administered on Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of anesthesia administered
to said Gerald Albert Gercayo and using 100% halothane and other anesthetic medications." 45However, the foregoing
circumstances, taken together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly imprudent
in administering the anesthetic agent to Gerald. Indeed, Dr. Vertidos findings did not preclude the probability that other
factors related to Geralds major operation, which could or could not necessarily be attributed to the administration of
the anesthesia, had caused the hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido revealingly
concluded in his report, instead, that "although the anesthesiologist followed the normal routine and precautionary
procedures, still hypoxia and its corresponding side effects did occur."46

The existence of the probability about other factors causing the hypoxia has engendered in the mind of the Court a
reasonable doubt as to Dr. Solidums guilt, and moves us to acquit him of the crime of reckless imprudence resulting to
serious physical injuries. "A reasonable doubt of guilt," according to United States v. Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt engendered
merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting
a fellow man. If, having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to
that degree of certainty as would lead you to act on the faith of it in the most important and crucial affairs of your life,
you may properly convict him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not
proof beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability.1wphi1 But
we cannot now find and declare him civilly liable because the circumstances that have been established here do not
present the factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There
was really no firm and competent showing how the injury to Gerard had been caused. That meant that the manner of
administration of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia
experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of the
hypoxia. We are not allowed to do so, for civil liability must not rest on speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree of the
RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum.
The decree was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal action
refers only to that arising from the offense charged.48 It is puzzling, therefore, how the RTC and the CA could have
adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that
Ospital ng Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower courts thereby
acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void as the product of
grave abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We deem it
important, then, to express the following observations for the instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not
respected from the outset. The R TC and the CA should have been alert to this fundamental defect. Verily, no person
can be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would
enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable
pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions
for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of
the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry." The
term industry means any department or branch of art, occupation or business, especially one that employs labor and
capital, and is engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not engaged in industry
conducted for profit but purely in charitable and humanitarian work.50 Secondly, assuming that Ospital ng Maynila was
engaged in industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the
discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee but a consultant of the
hospital. And, thirdly, assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not
happen here), the execution against him was unsatisfied due to his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the decision
promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting to
serious physical injuries; and MAKES no pronouncement on costs of suit. SO ORDERED.