CAYAO-LASAM VS RAMOLETE (GR NO.

159132 DECEMBER 18, 2002)

Cayao-Lasam vs Spouses Ramolete

GR No. 159132 December 18, 2002

Facts: On July 28, 1994, respondent 3 months pregnant Editha Ramolete was brought to Lorma Medical Center (LMC)
in San Fernando, La Union due to vaginal bleeding upon advise of petitioner related via telephone, Editha was admitted
to the LMC on the same day. A pelvic sonogram was then conducted on Editha revealing the fetus weak cardiac pulsation.
The following day, Editha repeat pelvic sonogram showed that aside from the fetus weak cardiac pulsation, no fetal
movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised her to undergo a D&C
procedure. She was discharged the following day. On September 16, 1994, Editha was once gain brought at the LMC, as
she was suffering from vomiting ans severe abdominal pains. Editha was attended by Drs. Dela Cruz, Mayo and Komiya.
Dr. Mayo allegedly informed Editha that there was a dead fetus in the latters womb, after Editha went laparectomy, she
was found to have massive intra abdominal hemorrhage and ruptured uterus. Thus, she had to go hysterectomy and as
a result no more chance to bear a child.

Issue: Whether or not petitioner is liable for medical malpractice.

Held: No. 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. 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.

There are four elements involved in medical negligence cases: duty, breach, injury, and proximate cause..

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. The breach of these professional duties of skill and care, or their improper
performance by a physician surgeon, whereby the patients injured in body or in health, constitutes actionable malpractice,
as to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert
testimony is essential. Further, in as much 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 suspect the
conclusion as to causation.

It is undisputed that Editha did not return for follow-up evaluation, in defiance of the petitioners advice. This is as found
out is the proximate cause of the injury she sustained.

G.R. 178763 Peter Paul Patrick Lucas et al v. Dr. Prospero Ma. Tuano, April 2009
Facts:

Sometime in 1988, petitioner Peter Paul Patrick Lucas contracted "sore eyes" in his right eye. Upon consultation with Dr.
Tuano, Peter narrated that it has been 9 days since the problem with his right eye began, and that he was already
taking Maxitrol to address the eye problem. According to Dr. Tuano, he performed "ocular routine examination" on Peter's
eyes, wherein: 1. a cross examination Peter's eyes and their surrounding area was made, and 2. Peter's visual acuity
were taken, 3. Peter's eyes were palpated to check the intraocular pressure of each; 4. the mortility of Peter's eyes were
observed, and 5. the ophthalmoscopy on Peter's eyes was used.

On that particular consultation, Dr. Tuano diagnosed that Peter was suffering from conjunctivitis or sore eyes. He then
prescribed Spersacet C-eye drops for Peter and told the latter to return for follow-up after one week.
As instructed, Peter returned and Dr. Tuano discovered that the right eye developed Epidemic Kerato Conjunctivitis, EKC,
a viral infection. To address the problem, Dr. Tuano prescribed Maxitrol, for a dosage of 6 times a day.

However, the EKC was getting worse yet Dr. Tuano still continued on advising the use of Maxittrol, despite Peter's
discovery of the inscribed warning written in its label.

Upon examination, Dr. Tuano noted the hardness in Peter's right eye and discovered that the tension in Peter's right eye
was 39.0 Hg. Since the tension was way over the normal IOP which only ranged from 10.0 Hg to 21.0 Hg, Dr. Tuano then
ordered him to immediately discontinue the use of Maxitrol and prescribed to the latter Diamox and Normoglaucon instead.
He also required Peter to go for a daily check-up in order for the former to closely monitor the pressure of the latter' eyes.

During one of Peter's regular follow-ups, Dr. Tuano noted the recurrence of EKC in Peter's right eye. Thus, he referred
Peter to Dr. Manuel Agulto, M.D., another opthalmologist specializing in glaucoma treatment.

Eventually, Peter, in claiming to have "steroid-induced glaucoma" and blaming Dr. Tuano for the same, filed a civil
complaint for damages against Dr. Tuano. In their complaint, petitioners averred that as the direct consequence of Peter's
prolonged use of Maxitrol, he suffered from steroid-induced glaucoma which caused the elevation of his intra-ocular
pressure, which caused the impairment of his vision which may lead to total blindness.

In rebutting petitioner's claim, Dr. Tuano asserted that the treatment made by him more than three years ago has no
causal connection to Peter's glaucoma. He further explained that 'drug-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'. Hence, the steroid
treatment of Peter's EKC caused the steroid-induced glaucoma.

RTC Ruling

The RTC dismissed the Civil Case for insufficiency of evidence, opining that petitioners failed to prove by preponderance
of evidence that Dr. Tuano was negligent in his treatment of Peter's condition. The trial court reasoned hat the recognized
standards of the medical community has not been established in thiss case, much less has causation been established
to render Dr. Tuano liable. Further, absence of any medical evidence to the contrary, the RTC ruled that it cannot accept
petitioner's claim that the use of steroid is the proximate cause of the damage sustained by Peter's eye.

Court of Appeals Ruling

The CA faulted petitioners because they failed to present any medical expert to testify that Dr. Tuano's prescription of
Maxitrol and Blephamide for the treatment of EKC on petiitioner's right eye was not proper and that his palpation of Peter's
right eye was not enough to detect adverse reaction to steroid.

During the trial in CA, 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 weeks, as EKC iss only a viral infection which will cure in tself. However,
Dr. Agulto was not presented by petitioners as a witness to confirm what he allegedly told Peter and therefore, the latter's
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 and his own personal knowledge. Familiar and fundamental is the rule that hearsay testimony is inadmissible as
evidence.

Petitioner's Motion for Reconsideration was denied by resolution, hence, this appeal.

Issue: Did the petitioners failed to prove by preponderance of evidence their claim for damages against Dr. Tuano?

Court Ruling:

Only questions of law may be raised under Rule 45 of the Rules of Court as this court is not a trier of facts.

The said issue constitutes a question of fact, as the Supreme Court is asked to revisit anew the factual findings of the
RTC and the CA. While this general rule admits of certain exceptions, such as 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.

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 consultation with the medical experts.

Petitioner's position in sum is that Peter's glaucoma is the direct result of Dr. Tuano's negligence in his improper
administration of the drug Maxitrol. Clearly, the present controversy is a classic illustration of a medical negligence case
against a physician based on the latter's professional negligence. In this type of suit, the patient or his heirs, in order to
prevail, is required to prove by 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 faiure, 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
"whoever by act or omission, causes damage to another, there being no fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, is there is no pre-existing contractual relation between the parties is called quasi-
delict.

In medical negligence cases, the four essential elements are the following: 1. duty 2. breach 3. injury 4. proximate cause,
which must be established by the plaintiffs.

In order that there may be a recovery for an injury, it must be shown that the injury for which the 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.
Criminal Law- Proximate cause: It is the cause, which is the natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have occurred. That is,
the negligence must be the proximate cause of the injury.

Just as with the elements of duty and breach of the same, in order to establish the proximate cause by preponderance of
evidence, the patient must similarly use expert testimony, because the question of whether the alleged professional
negligence caused the patient's 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 expert's role is to present to the court a realistic
assessment of the likelihood that the physician's alleged negligence caused the patient's injury.

In this case, Dr. Tuano was able to clearly explain what is only required of ophthalmologists, in cases such as Peter's is
the conduct of standard tests/ procedures known as "ocular routine examination" composed of five (5) test 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 he did all those tests every time Peter went
to see him for follow-up consultation and/or check-up.

Even if we are to assume that Dr. Tuano committed negligent acts in his treatment of Peter's condition, the causal
connection between Dr. Tuano's supposed negligence and Peter's 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 plaintiff's injuries.

Civil procedure, burden of proof: In civil cases, the party having the burden of proof must establish his case by
a preponderance of evidence, or evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto. The party having the burden of proof must establish his case by a preponderance
of evidence or "evidence which is of greater weight or more convincing that that which is offered in opposition to it; in the
last analysis, it means the probability of truth.

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 by the physician or surgeon. The RTC, Court of Appeals and even the Supreme 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.
BONTILAO VS GERONA (GR NO. 176675 SEPTEMBER 15, 2010)

Bontilao vs Gerona
GR No. 176675 September 15, 2010

Facts: On December 28, 1991, respondent Dr. Carlos Gerona, an orthopedic surgeon at the Vicente Gullas Memorial
Hospital, treated petitioners son, 8 y/o Allen Roy Bontilao, for a fractured right wrist. Respondent administered a U-spint
and immobilized Allens wrist with a cast, then sent Allen home. On June 4, 1992, Alen re-fractured the same wrist and
was brought back to the hospital. The x-ray examination showed a complete fractured and displacement bone, with the
fragments overlapping each other. Respondent performed a closed reduction procedure, with Dr. Vicente Jabagat as the
anesthesiologist. Then he placed Allens arm in a plaster cast to immobilize it. He allowed Allen to go home after the post
reduction x-ray showed that the bones were properly aligned, but advised Allens mother, petitioner Sherlina Bontilao, to
bring Allen back for re-tightening of the cast not later than June 15, 1992. Allen was however, only brought back after the
said date. By then, because the cast had not be re-tightened, a rotational deformity had developed in Allens arm. The x-
ray examination showed that the deformity was caused by a re-displacement of the bone fragments, so it was agreed that
an open reduction surgery will be conducted on June 24, 1992 by the respondent, again with Dr. Jabagat as the
anesthesiologist. On the said date, Sherlina was allowed to observe the operation behind a glass panel. Dr. Jabagat failed
to intubate the patient after 5 attempts so anesthesia was administered through a gas mask. Respondent asked Dr.
Jabagat if the operation should be postponed given the failure to intubate, but Dr. Jabagat said that it was alright to
proceed. Respondent verified that Allen was breathing properly before proceeding with the surgery. As respondent was
about to finish the suturing, Sherlina decided to go out of the operating room to make a telephone call and wait for her
son. Later, she was informed that her son died on the operating table. The cause of death was asphyxia due to the
congestion and edema of the epiglottis. Hence, a criminal, administrative and civil case was filed by the parents of Allen
against the doctors for the negligence that caused Allens death.

Issue: Whether or not respondent is liable for medical negligence due to the death of Allen.

Held: No. The trial court erred in applying the doctrine of res ipsa liquitor to pin liability on respondent for Allens
death. Res ipsa liquitor is a rebuttable presumption or influence that the defendant was negligent. The presumption only
arises upon proof that the instrumentality causing injury was in the defendants exclusive control, and that the accident
was one which ordinarily does not happen in the absence of negligence. It is a rule of evidence whereby negligence of
the alleged wrong does may be inferred from the mere fact that the accident happened, provided that the character of the
accident and circumstances attending it lead reasonably to the belief that in the absence of negligence it would not have
occurred and that the thing which caused injury is shown to have been under the management and control of the alleged
wrong doer.

Res ipsa liquitor is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied defending
upon the circumstances of each case. In malpractice case, the doctrine is generally restricted to situations where a layman
is able to say, as a matter of common knowledge and observation, that the consequence of professional care were not
as such as would ordinarily have followed if due care had been exercised.

Moreover, we note that in the instant case, the instrument which caused the injury or damage was not even within
respondents exclusive control and management as Dr. Jabagat was exclusively in control and management of the
anesthesia and endotracheal tube. The doctrine of res ipsa liquitor allows the mere existence of an injury to justify a
presumption of negligence or 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 co-defendants;
3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

LI VS SOLIMAN (GR NO. 165279 JUNE 7, 2011)

Li vs Spouses Soliman
GR No. 165279 June 7, 2011

Facts: On July 7, 1993, respondents 11 year old daughter, Angelica Soliman underwent a biopsy of the mass located in
her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was suffering from
osteosaucoma, ostiobiostic type, a high-grade (highly malignant) cancer of the bone which usually affects teenage
children. Following this diagnosis, Angelicas right leg was amputated by Dr. Tamayo in order to remove the tumor. As a
adjuvant treatment to eliminate any remaining cancer cells, and hence minimizing the chances of recurrence and prevent
the decease from spreading to other parts of the patients body, chemotherapy was suggested by Dr. Tamayo and referred
Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them
Angelicas condition. Petitioner told respondents that Angelica should be given 2-3 weeks to recover from the operation
before starting the chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only
from P70,000-150,000 a year from his jewelry and watching repair business. Petitioner, however, assured them not to
worry about her professional fee and told them to just save up for medicines to be used.

As the chemotherapy session started, day by day, Angelica experience worsening condition and other physical effect on
the body such as discoloration, nausea, and vomiting.

Petitioner claimed, that she explained to respondents that even when a tumor is removed, there are still small lesions
undetectable to the naked eye and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen
the chance of cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelicas
cancer. During these consultations with respondents, she explained the following side effects of chemotherapy treatment
to respondents: 1.) Falling hair; 2.) nausea and vomiting; 3.) loss of appetite; 4.) low count of WBC, RBC, and platelets;
5.) possible sterility due to the effects on Angelicas ovary; 6.) Damage to kidney and heart; 7.) darkening of the skin
especially when exposed to sunlight. She actually talked to the respondents four times, once at the hospital after the
surgery, twice at her clinic and fourth when Angelicas mother called her through long distance. This was disputed by
respondents who countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects were nausea, vomiting and hair loss. Those were the only side
effects of chemotherapy mentioned by petitioner.

Issue: Whether or not petitioner committed medical malpractice.

Held: No. 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 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 health care provider would not have done; and that failure or action
caused injury to the patient.

Medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion
of qualified physicians stems from the formers realization that the latter possess unusual technical skills which layman in
most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies.

The doctrine of informed consent within the context of physician-patient relationships goes as far back into english
common law. As early as 1767, doctors were charged with the tort of battery if they have not gained the consent of their
patients prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff vs Society of
New York Hospital which involved unwanted treatment performed by a doctor. Justice Bejamin Cardozo oft-quoted opinion
upheld the basic right of a patient to give consent to any medical procedure or treatment; every human being of adult year
and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation
without his patients consent commits an assault, for which he is liable in damages. From a purely ethical norm, informed
consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician
in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risk of
injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for her own
welfare and faced with a choice of undergoing the proposed treatment, as alternative treatment, or none at all, may
intelligently exercise his judgement by reasonably balancing the probable risk against the probable benefits.

There are four essential elements a plaintiff must proved in a malpractice action based upon the doctrine of informed
consent: 1.) the physician had a duty to disclose material risks; 2.) he failed to disclose or inadequately disclosed those
risks; 3.) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would
not have consented to; and 4.) plaintiff was injured by the proposed treatment. The gravamen in an informed consent
requires the plaintiff to point to significant undisclosed information relating to the treatment which could have altered her
decision to undergo it.

Examining the evidence, we hold that there was adequate disclosure of material risks inherent in chemotherapy procedure
performed with the consent of Angelicas parents. Respondents could not have been unaware in the course of initial
treatment and amputation of Angelicas lower extremity that her immune system was already weak on account of the
malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy
which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage
and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well
that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by
the nature of the disease itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests
cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or
the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot
be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general
side effects of chemotherapy already disclosed.

ATIENZA V BOARD OF MEDICINE

10MAR
G.R. No. 177407 | February 9, 2011 | J. Nachura
Facts:
1. Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center (RMC) for check-up on
February 1995.

2. Sometime in 1999, due to the same problem, she was referred to Dr. Pedro Lantin III of RMC who, accordingly,
ordered several diagnostic laboratory tests. She underwent kidney operation after the tests revealed that her left kidney
is non-functioning and non-visualizing.

3. Private respondents husband Romeo Sioson then filed a complaint for gross negligence and/or incompetence before
the Board of Medicine for the removal of Edithas fully functional right kidney, instead of the left, against the doctors who
allegedly participated in the kidney operation, namely: Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio
Florendo and petitioner Rico Rommel Atienza.

4. After Romeo Sioson presented his evidence, Editha filed her formal offer of documentary evidence, which consisted
of certified photocopies of X-Ray request forms where interpretation of the ultrasound results were written, for the
purpose of proving that her kidneys were both in their proper anatomical locations at the time she was operated.

5. Petitioner filed his comments/objections to Edithas formal offer of exhibits, alleging that said exhibits are inadmissible
because the same are mere photocopies, not properly identified and authenticated, intended to establish matters which
are hearsay, and incompetent to prove the purpose for which they are offered.

6. The formal offer of documentary exhibits of private respondent was admitted by the BOM. Petitioner moved for
reconsideration of the Order, which was denied on the ground that BOM should first admit the evidence being offered so
that it can determine its probative value when it decides the case, and later on determine whether the evidence is
relevant or not.

7. Disagreeing with the BOM, Atienza filed a petition for certiorari with the CA. The CA dismissed the petition for
certiorari for lack of merit. Hence, the present petition for review on certiorari.

Issue:
W/N the exhibits are inadmissible in evidence
Held:
No. Petition denied. To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings
before administrative bodies such as the BOM. Although trial courts are enjoined to observe strict enforcement of the
rules of evidence, in connection with evidence which may appear to be of doubtful relevancy, incompetency, or
admissibility, we have held that, it is the safest policy to be liberal, not rejecting them on doubtful or technical grounds,
but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them
beyond the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their
admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or
ignoring them.
Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at
all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue.
Second, petitioners insistence that the admission of Edithas exhibits violated his substantive rights leading to the loss
of his medical license is misplaced in light of Section 20, Article I of the Professional Regulation Commission Rules of
Procedure. As pointed out by the appellate court, the admission of the exhibits did not prejudice the substantive rights of
petitioner because, at any rate, the fact sought to be proved thereby, that the two kidneys of Editha were in their proper
anatomical locations at the time she was operated on, is presumed under Section 3, Rule 131 of the Rules of Court on
Disputable presumptions.
The exhibits are certified photocopies of X-ray Request Forms filed in connection with Edithas medical case, which
contained handwritten entries interpreting the results of the examination. The fact sought to be established by the
admission of Edithas exhibits, that her kidneys were both in their proper anatomical locations at the time of her
operation, need not be proved as it is covered by mandatory judicial notice. These exhibits do not constitute hearsay
evidence of the anatomical locations of Edithas kidneys because the position and removal may still be established
through a belated ultrasound or x-ray of her abdominal area.

Contrary to the assertion of petitioner, the best evidence rule is also inapplicable. Section 3 of Rule 130 provides:

1. Best Evidence Rule

Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document,
no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the
offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

The subject of inquiry in this case is whether respondent doctors before the BOM are liable for gross negligence in
removing the right functioning kidney of Editha instead of the left non-functioning kidney, not the proper anatomical
locations of Edithas kidneys. As previously discussed, the proper anatomical locations of Edithas kidneys at the time of
her operation at the RMC may be established not only through the exhibits offered in evidence.

In fact, the introduction of secondary evidence, such as copies of the exhibits, is allowed, especially as one of the
witnesses testified that the Records Office of RMC no longer had the originals of the exhibits because [it] transferred
from the previous building, x x x to the new building and ultimately, the originals cannot be produced.

JARCIA VS PEOPLE (GR NO. 187926 FEBRUARY 15, 2012)

Jarcia vs People of the Philippines

GR No. 187926 February 15, 2012

Facts: Belinda Santiago lodged a complaint with the National Bureau of Investigation (NBI) against the petitioners, Dr.
Emanuel Jarcia and Dr. Marilou Bastan, for their alleged neglect of professional duty which caused her son, Roy Alfonso
Santiago, to suffer 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 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 11 days later, Roy 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. A complaint for reckless imprudence resulting physical injuries was
filed against the petitioners for the alleged misconduct in the handling of the illness of Roy.
Issue: Whether or not the petitioners failed to exercise the degree of care expected of them as doctors and are liable for
negligence to the private respondent.

Held: Yes. The doctrine of res ipsa liquitor as a rule of evidence is unusual to the law of negligence which recognizes
that prima facie negligencce 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 duty. The doctrine can be invoked
when and only when, under the circumstances involved, direct evidence is absolute and not readily available.

The requisites for the application of the doctrine of res ipsa liquitor 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.

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.

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.

In failing to perform an extensive medical examination to determine the extent of Roys 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.

G.R. No. 158461

ABAD, J.:
These cases involve the liability of the surgeon, the anesthesiologist, and the hospital owner arising from a botched
caesarean section that resulted in the patient going into a coma.

The Facts and the Case

When his wife Raymunda went into labor pains and began bleeding on November 13, 1990, respondent Rodrigo
Calayag (Rodrigo)[1]brought her to St. Michael's Clinic of petitioner Dr. Divinia Unite (Dr. Unite) at Malolos, Bulacan.
After initial examination, the doctor told Rodrigo that Raymunda had to have a caesarean section for her baby but this
had to be done at the better-equipped Sacred Heart Hospital (SHH), owned and operated by petitioner Dr. Alberto
Reyes (Dr. Reyes).

SHH admitted Raymunda at 2:16 p.m. of the same day.[2] To prepare her, the attending anesthesiologist, petitioner Dr.
Eduardo Aquino (Dr. Aquino), injected her at about 2:30 p.m. with a preliminary "Hipnotic."[3] At 2:48 p.m., he
administered an anesthesia on her spine.[4] A few minutes later, at 2:53 p.m.,[5] Dr. Unite delivered a stillborn eight-
month-old baby.[6]

A few minutes later or at around 3:00 p.m., the operating team[7] noticed that Raymunda had become cyanotic.[8] Her
blood darkened for lack of oxygen and, all of a sudden, her vital signs were gone. [9] The team worked on her for about 5
to 7 minutes until these were restored.[10]

Rodrigo claimed that when he saw Raymunda after the operation, her skin appeared dark ("nangingitim ang katawan")
and the white of her eyes showed ("nakatirik ang mata"). When he asked Dr. Unite why his wife did not look well, she
replied that this was merely the effect of the anesthesia and that she would regain consciousness in about eight hours.

When Raymunda's condition did not improve after a day, Dr. Unite referred her to Dr. Farinas, an internist, who found
that she suffered a cardiac arrest during the operation, which explained her comatose state. Dr. Farinas referred
Raymunda to a neurologist who advised Rodrigo to move her to a better-equipped hospital.[11] SHH discharged her on
November 16, 1990, four days after her admission.

Raymunda was directly moved to Medical Center Manila (MCM) where Dr. Rogelio Libarnes (Dr. Libarnes), a
neurologist, examined her. He found Raymunda in a "vegetative state," [12] having suffered from an anoxic injury[13] due
to cardio-respiratory arrest during operation.[14] Dr. Libarnes was reluctant, however, to further proceed without
consulting Dr. Unite, Raymunda's surgeon, and Dr. Aquino, the anesthesiologist.

On November 23, 1990 Dr. Unite went to MCM to remove the stitches from Raymunda's surgical wound. Dr. Unite noted
that the wound had dried with slight lochial discharge.[15] Later that day, however, Raymunda's wound split open,
causing part of her intestines to jut out. MCM's Dr. Benito Chua re-sutured the wound.[16]

Raymunda never regained consciousness, prompting her MCM doctors to advise Rodrigo to take her home since they
could do no more to improve her condition. MCM discharged her on November 30, 1990 and she died 15 days later on
December 14, 1990.

Rodrigo filed, together with his seven children, a complaint[17] for damages against Dr. Unite, Dr. Aquino, and Dr. Reyes
before the Regional Trial Court (RTC) of Malolos. Rodrigo claimed that Dr. Unite and Dr. Aquino failed to exercise the
diligence required for operating on Raymunda. As for Dr. Reyes, Rodrigo averred that he was negligent in supervising
the .work of Dr. Unite and Dr. Aquino.

Defendant doctors uniformly denied the charge of negligence against them. They claimed that they exercised the
diligence required of them and that causes other than negligence brought about Raymunda's condition.

On August 22, 1994, after hearing the parties on their evidence, the RTC rendered a decision, finding the three doctors
liable for negligence. The proximate cause of Raymunda's cardiac arrest, said the RTC, was an anesthetic accident,
occasioned by injecting her with a high spinal anesthesia. The operating doctors failed to correctly monitor her condition,
resulting in a critical delay in resuscitating her after the cardiac arrest. The RTC ordered the doctors to pay Raymunda's
heirs P153,270.80 as actual damages, P300,000.00 as moral damages, and P80,000.00 as attorney's fees and cost of
suit.

On appeal,[18] the Court of Appeals entirely affirmed the findings of the RTC.[19] Undaunted, Dr. Unite, Dr. Aquino, and
Dr. Reyes filed separate petitions for review that the Court subsequently consolidated.

In her petition, Dr. Unite washed her hands of any responsibility in Raymunda's operation. She claimed that it was not
her suturing that caused the splitting open of the patient's surgical wound. Further, although some negligence may have
attende'd the operation, this could be traced to the anesthesiologist, Dr. Aquino.

Dr. Aquino claims, on the other hand, that the evidence was insufficient to support the conclusion that anesthetic
accident caused the cardio-respiratory arrest since, as testified, other factors may have caused the same.

Finally, Dr. Reyes claims that he cannot be held liable for Raymunda's death since Dr. Unite and Dr. Aquino were not
his employees. Based on the control test, he did not exercise control and supervision over their work. They merely used
his hospital's facilities for the operation.

The Issues Presented

The cases present two issues:

1. Whether or not Dr. Unite (the surgeon) and Dr. Aquino (the anesthesiologist) acted negligently in handling
Raymunda's operation, resulting in her death; and

2. Whether or not Dr. Reyes is liable, as hospital owner, for the negligence of Dr. Unite and Dr. Aquino.

The Court's Rulings

The cause of action against the doctors in these cases is commonly known as medical malpractice. It is a form of
negligence which consists in the physician or surgeon's failure to apply to his practice that degree of care and skill that
the profession generally and ordinarily employs under similar conditions and circumstances.[20]

For this reason, the Court always seeks guidance from expert testimonies in determining whether or not the defendant
in a medical malpractice case exercised the degree of care and diligence required of him.[21] The Court has to face up to
the fact that physicians have extraordinary technical skills that laymen do not have. [22]

To successfully mount a medical malpractice action, the plaintiff should establish four basic things: (1) duty; (2) breach;
(3) injury; and (4) proximate causation.[23] The evidence should show 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.[24]

Here, to prove Dr. Unite and Dr. Aquino's negligence, Rodrigo presented Dr. Libarnes, Raymunda's attending
neurologist, and Dr. Chua, the general surgeon who re-stitched her wound.

Dr. Libarnes- explained that it was cyanosis or lack of oxygen in the brain that caused Raymunda's vegetative state. Her
brain began to starve for oxygen from the moment she suffered cardio-respiratory arrest during caesarean section. That
arrest, said Dr. Libarnes, could in turn be traced to the anesthetic accident that resulted when Dr. Aquino placed her
under anesthesia.[25]

Dr. Libarnes also blamed the doctors who operated on Raymunda for not properly keeping track of her vital signs during
the caesarean procedure resulting in their failure to promptly address the cyanosis when it set in. [26] Dr. Chua, on the
other hand, testified that Raymunda's surgical wound would not have split open if it had been properly closed.[27]

For their defense, Dr. Unite and Dr. Aquino presented Dr. Reyes, their co-defendant, who practiced general surgery. Dr.
Reyes testified that Raymunda's cardio-respiratory arrest could have been caused by factors other than high spinal
anesthesia, like sudden release of intra-abdominal pressure and amniotic fluid embolism.[28] Insofar as Raymunda's
dehiscence or splitting open of wound was concerned, Dr. Reyes testified that Raymunda's poor nutrition as well as the
medication contributed to the dehiscence.

While the Court cannot question the expertise of Dr. Reyes as a general surgeon, it cannot regard him as a neutral
witness. Given that he himself was a defendant in the case, he had a natural bias for testifying to favor his co-
defendants.[29] Further, since he had no opportunity to actually examine Raymunda, Dr. Reyes could only invoke
textbook medical principles that he could not clearly and directly relate to the patient's specific condition.

In contrast, as a neurologist with expertise in the human nervous system, including the brain, Dr. Libarnes was in a
better position to explain Raymunda's "vegetative" condition and its cause. In his opinion, an anesthetic accident .during
her caesarean section caused a cardio-respiratory arrest that deprived her brain of oxygen, severely damaging it. That
damage could have been averted had the attending doctors promptly detected the situation and resuscitated her on
time. Thus, Dr. Libarnes said:

Atty. Lazaro:
What could have been the probable cause of this cardio-respiratory arrest now Doctor?
Dr. Libarnes:
 Well, most common cause of intra-operative cardio-respiratory arrest is anesthesia, an anesthetic accident.
Q: Will you kindly explain that in layman's language now Doctor?
The spinal anesthesia can re [suit] in depression of respiratory function. Respiratory arrest if significantly
A:
prolonged] can lead to cardiac arrest. Cardiac arrest of significant duration can res[ult] in brain injury. [30]
xxxx
Now, when you refer to anoxic injury Doctor, you are referring to the lack of supply of oxygen going to the
Q:
brain that is what you mean?
A: Yes.
Q: And this is due to the weak pumping of the heart, that is correct Doctor?
A: Yes.
And. the weak pumping of the heart under the events indicated by you could have been due to anesthesia
Q:
accident, that is correct?
Hypoxia meaning lobe of the lung not providing oxygen, the heart has been stressed under hypoxic
A:
condition eventually giving out. Yes, that is correct.[31]

Dr. Aquino administered to Raymunda a high spinal anesthesia when he should have given her only a low or mid-spinal
anesthesia.[32]

Notably, Dr. Unite corroborated the fact that Raymunda suffered from cyanosis due to deprivation of oxygen. This was
Dr. Unite's explanation when Rodrigo, seeing his wife after the operation, asked why she had a bluish color. Moreover,
Dr. Unite admitted in her petition, that the proximate cause of Raymunda's brain injury was Dr. Aquino's acts as
anesthesiologist.[33]

But Dr. Unite cannot exempt herself from liability. Dr. Aquino was not feeling well on the day of the operation as he was
in fact on sick leave.[34] As surgeon in charge, Dr. Unite should not have allowed Dr. Aquino to take part in the operation.

Besides, as the RTC found; the record of the operation contained no notation just when Raymunda had a cardio-
respiratory arrest and ceased to take in oxygen. This notation played a critical role since the surgeons had between 6 to
8 minutes from the time of arrest, called the golden period of reversibility, within which to save her from becoming a
vegetable. The absence of the notation on record, an important entry because the absence of which is itself a ground for
malpractice,[35] implies that the surgeons had no inkling when the cardio-respiratory arrest occurred and how much time
they had left to revive their patient. Indeed, it took a subsequent examination by an internist for them to realize that
Raymunda had suffered a cardio-respiratory arrest.

As for Dr. Reyes, the hospital owner, there appears no concrete proof to show that Dr. Unite and Dr. Aquino were under
the hospital's payroll. Indeed, Dr. Aquino appeared to be a government physician connected with the Integrated
Provincial Health Office of Bulacan.[36]Dr. Unite appeared to be a self-employed doctor. The hospital allowed these
doctors to operate on their patients, using its operating room and assisting staffs for a fee. No evidence has been
presented that Raymunda suffered her fate because of defective hospital facilities or poor staff support to the surgeons.

That Dr. Reyes and his wife rushed to the operating room the moment they heard that Raymunda's vital signs had
ceased is not an evidence that they exercised supervision over the conduct of the operation. They evidently came to
see what was happening possibly to provide help if needed. Their showing up after the operation is not a proof that they
had control and supervision over the work of the two doctors.

Nor would the doctrine of ostensible agency or doctrine of apparent authority make Dr. Reyes liable to Raymunda's
heirs for her death. Two factors must be present under this doctrine: 1) the hospital acted in a manner which would lead
a reasonable person to believe that the person claimed to be negligent was its agent or employee; and 2) the patient
relied on such belief.

Here, there is no evidence that the hospital acted in a way that made Raymunda and her husband believe that the two
doctors were in the hospital's employ. Indeed, the couple had been consulting Dr. Unite at St. Michael's Clinic, which
she owned and operated in Malolos, Bulacan. She convinced them that the caesarean section had to be performed at
the SHH because it had the facilities that such operation required. If the Court were to allow damages against the
hospital under this arrangement, independently licensed surgeons would be unreasonably denied access to properly-
equipped operating rooms in big hospitals.

As to the award of damages, following precedents set in Flores v. Pineda[37] respondent heirs of Raymunda are entitled
to P50,000.00 as death indemnity pursuant to Article 2206 of the Civil Code.

WHEREFORE, premises considered, this Court DENIES the petitions and AFFIRMS the decision of the Court of
Appeals dated November 28, 2002 and resolution dated May 27, 2003 subject to MODIFICATION directing petitioners,
Dr. Divinia Unite and Dr. Eduardo Aquino to pay the heirs of Raymunda Calayag, in addition to the damages that the
Court of Appeals awarded them, P50,000.00 as death indemnity.

SO ORDERED.

Velasco, Jr., (Chairperson), Peralta, Mendoza, and Perlas-Bernabe, JJ., concur.

Dr. Encarnacion Lumantas v. Hanz Calapiz, G.R. No. 163753, 15 January 2014.

05SEP

[BERSAMIN, J.]
FACTS:
In 1995, Spouses Hilario Calapiz, Jr. and Herlita Calapiz brought their 8-year-old son, Hanz Calapiz (Hanz), to the Misamis
Occidental Provincial Hospital, Oroquieta City, for an emergency appendectomy. Hanz was attended to by the petitioner,
who suggested to the parents that Hanz also undergo circumcision at no added cost to spare him the pain. With the
parents consent, the petitioner performed the coronal type of circumcision on Hanz after his appendectomy. On the
following day, Hanz complained of pain in his penis, which exhibited blisters. His testicles were swollen. The parents
noticed that the child urinated abnormally after the petitioner forcibly removed the catheter, but the petitioner dismissed
the abnormality as normal. Hanz was discharged from the hospital over his parents protestations, and was directed to
continue taking antibiotics. After a few days, Hanz was confined in a hospital because of the abscess formation between
the base and the shaft of his penis. Presuming that the ulceration was brought about by Hanzs appendicitis, the petitioner
referred him to Dr. Henry Go, an urologist, who diagnosed the boy to have a damaged urethra. Thus, Hanz underwent
cystostomy, and thereafter was operated on three times to repair his damaged urethra.

When his damaged urethra could not be fully repaired and reconstructed, Hanzs parents brought a criminal charge
against the petitioner for reckless imprudence resulting to serious physical injuries. In his defense, the petitioner denied
the charge. He contended that at the time of his examination of Hanz, he had found an accumulation of pus at the vicinity
of the appendix two to three inches from the penis that had required immediate surgical operation; that after performing
the appendectomy, he had circumcised Hanz with his parents consent by using a congo instrument, thereby debunking
the parents claim that their child had been cauterized; that he had then cleared Hanz once his fever had subsided; that
he had found no complications when Hanz returned for his follow up check-up; and that the abscess formation between
the base and the shaft of the penis had been brought about by Hanzs burst appendicitis.

The RTC acquitted the petitioner of the crime charged for insufficiency of the evidence. It held that the Prosecutions
evidence did not show the required standard of care to be observed by other members of the medical profession under
similar circumstances. Nonetheless, the RTC ruled that the petitioner was liable for moral damages because there was a
preponderance of evidence showing that Hanz had received the injurious trauma from his circumcision by the petitioner.
The Petitioner appealed his case to the CA contending that he could not be held civilly liable because there was no proof
of his negligence. The CA affirmed the RTC, sustaining the award of moral damages.

ISSUE:
Whether the CA erred in affirming the petitioners civil liability despite his acquittal of the crime of reckless imprudence
resulting in serious physical injuries.
HELD:
NO.

It is axiomatic that every person criminally liable for a felony is also civilly liable. xxx Our law recognizes two kinds of
acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is
not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has
been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission.
There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must
be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of
Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if
the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved
by preponderance of evidence only.
The petitioners contention that he could not be held civilly liable because there was no proof of his negligence deserves
scant consideration. The failure of the Prosecution to prove his criminal negligence with moral certainty did not forbid a
finding against him that there was preponderant evidence of his negligence to hold him civilly liable. With the RTC and
the CA both finding that Hanz had sustained the injurious trauma from the hands of the petitioner on the occasion of or
incidental to the circumcision, and that the trauma could have been avoided, the Court must concur with their uniform
findings. In that regard, the Court need not analyze and weigh again the evidence considered in the proceedings a quo.
The Court, by virtue of its not being a trier of facts, should now accord the highest respect to the factual findings of the
trial court as affirmed by the CA in the absence of a clear showing by the petitioner that such findings were tainted with
arbitrariness, capriciousness or palpable error.

Every person is entitled to the physical integrity of his body. Although we have long advocated the view that any physical
injury, like the loss or diminution of the use of any part of ones body, is not equatable to a pecuniary loss, and is not
susceptible of exact monetary estimation, civil damages should be assessed once that integrity has been violated. The
assessment is but an imperfect estimation of the true value of ones body. The usual practice is to award moral damages
for the physical injuries sustained. In Hanzs case, the undesirable outcome of the circumcision performed by the petitioner
forced the young child to endure several other procedures on his penis in order to repair his damaged urethra. Surely, his
physical and moral sufferings properly warranted the amount of P50,000.00 awarded as moral damages.

Many years have gone by since Hanz suffered the injury. Interest of 6% per annum should then be imposed on the award
as a sincere means of adjusting the value of the award to a level that is not only reasonable but just and commensurate.
Unless we make the adjustment in the permissible manner by prescribing legal interest on the award, his sufferings would
be unduly compounded. For that purpose, the reckoning of interest should be from the filing of the criminal information on
April 17, 1997, the making of the judicial demand for the liability of the petitioner.

SOLIDUM VS PEOPLE (GR NO. 192123 MARCH 10, 2014)

Solidum vs People of the Philippines

GR No. 192123 March 10, 2014

Facts: Gerald Albert Gercayo was born on June 2, 1992 with an imperforate anus. Two days after his birth, Gerald under
went colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal walls, enabling
him to excrete through a colostomy bag attached to the side of his body. On May 17, 1995, Gerald was admitted at the
Ospital ng Maynila for a pull-through operation. Dr. Leandro Resurreccionheaded the surgical team, and was assisted by
Dr. Joselito Lucerio, Dr.Donatella Valeria and Dr. Joseph Tibio. The anesthesiologist included Drs. Abella, Razon and
Solidum. During the operation, Gerald experienced bradycardia and went into a coma. His coma lasted for two weeks ,
but he regained consciousness only after a month. He could no longer see, hear, or move. A complaint for reckless
imprudence resulting in serious physical injuries were filed by Geralds parents against the team of doctors alleging that
there was failure in monitoring the anesthesia administered to Gerald.

Issues: Whether or not petitioner is liable for medical negligence.

Whether or not res ipsa liquitor can be resorted to in medical negligence cases.

Held: No. 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.
Reckless imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precaution on the part of the person to perform or failing to
perform such act.

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 and 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; c.) the causation,
is, there must be a reasonably close and casual connection between the negligent act or omission and the resulting injury;
and d.) the damages suffered by the patient.

In the medical profession, specific norms on standard of care to protect the patient against unreasonable risk, commonly
referred to as standards of care, set the duty of the physician in respect of the patient. The standard of care is an objective
standard which conduct of a physician sued for negligence or malpractice may be measured, and it does not depend
therefore, on any individuals 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 doctrine of res ipsa liquitor 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 ordinary course of things does not happen if those who have management
use proper care, it affords reasonable evidence, in the absence of an explanation by defendant that the accident arose
from want of care.

Nevertheless, despite the fact that the scope of res ipsa liquitor 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 liquitor 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 liquitor 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 results. Thus, res ipsa liquitor 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 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 case or causes of the untoward consequence. If there was such extraneous
intervention, the doctrine of res ipsa liquitor may be utilized and the dependent is called upon to explain the matter, by
evidence of exculpation, if he could.

DELA TORRE VS IMBUIDO (GR NO. 192973 SEPTEMBER 29, 2014)

 Dela Torre vs Imbuido
GR No. 192973 September 29, 2014

Facts: At around 3:00pm of February 3, 1992, Carmen was brought to Divine Spirit General Hospitals operating room for
her caesarian section operation, which was to be performed by Dr. Nestor. By 5:30pm, of the same day, Pedrito was
informed by his wifes delivery of a baby boy. In the early morning of February 4, 1992, Carmen experienced abdominal
pains and difficulty in urinating. She was diagnosed to be suffering from urinary tract infection (UTI), and was prescribed
medication by Dr. Norma. On February 10, 1992, Pedrito noticed that Carmens stomach was getting bigger, but Dr.
Norma dismissed the patients condition as mere fratulence. When Carmens stomach still grow bigger despite
medications, Dr. Norma advised Pedrito of the possibility of a second operation on Carmen. Dr. Norma, however, provided
no details on its purpose and the doctor who would perform it. At around 3:00pm on February 12, 1992 Carmen had her
second operation. Later in the evening, Dr. Norma informed Pedrito that everything was going on fine with his wife. The
condition of Carmen, however, did not improve. It instead worsened that on February 13, 1992, she vomited dark red
blood. At 9:30pm of the same day, Carmen died. Per her death certificate upon information provided by the hospital, the
immediate cause of Carmens death was cardio-respiratory arrest secondary to cerebro vascular accident, hypertension
and chronic nephritis induced by pregnancy. An autopsy report prepared by Dr. Partilano, medico-legal officer designate
of Olongapo City, however, provided that the cause of Carmens death was shock due to peritonitis severe with multiple
intestinal adhesions; status post caesarian section and exploratory laparotomy. Pedrito claimed in his complaint that the
respondents failed to exercise the degree of diligence required of them as members of the medical profession, and were
negligent for practicing surgery on Carmen in the most unskilled, ignorant, and cruel manner.

Issue: Whether or not respondents were liable for medical malpractice that resulted to Carmens death.

Held: No. 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, or his or her family as in this case, must prove that healthcare 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 failure or action caused
injury to the patient.

Four essential elements must be established namely: 1.) duty; 2.) breach; 3.) injury and 4.) proximate causation. All four
elements must be present in order to find the physician negligent and thus, liable for damages.

For the trial court to give weight to Dr. Partilanos report, it was necessary to show first Dr. Partilanos specialization and
competence to testify on the degree of care, skill and diligence needed for the treatment of Carmens case. Considering
that it was not duly established that Dr. Partilano practiced and was an expert on the fields that involved Carmens
condition, he could not have accurately identified the said degree of care, skill and diligence and the medical procedure,
that should have been applied.

BONDOC VS MANTALA (GR NO. 203080 NOVEMBER 12, 2014)

Bondoc vs Mantala
GR No. 203080 November 12, 2014

Facts: Respondent was admitted at the Oriental Mindoro Provincial Hospital (OMPH) on April 3, 2009, at around 11:00am,
with referral from the Bansud Municipal Health Office. She was due to deliver her 5th child and was advised for a caesarian
section because her baby was big and there was excessive amniotic fluid in her womb. She started to labor at 7:00am
and was initially brought to the Bongabon Health Center. However, said health center also told her to proceed directly to
the hospital. In her complaint-affidavit, respondent alleged that inside the delivery room of OMPH, she was attended to
by petitioner who instructed the midwife and two younger assistants to press down on respondents abdomen and even
demonstrated to them how to insert their fingers into her vagina. Thereafter, petitioner went out of the delivery room and
later, his assistants also left. After hours of being in labor, respondent pleaded for a caesarian section. The midwife and
the younger assistants pressed down on her abdomen causing excruciating pains on her ribs and made her very weak.
They repeatedly did this pressing until the bay and placenta came out. When she regained consciousness, she was
already at the recovery room, she learned that an operation was performed on her by petitioner to removed her ruptured
uterus but what depressed her most was her stillborn baby and the loss of her reproductive capacity. The respondent
noticed that her vulva swollen and there is an open wound which widened later on and was re-stitched by petitioner.
Petitioner was heard uttering words unbecoming of his profession pertaining to the respondents states while in labor.
Respondent filed then a complaint for grave misconduct against the petitioner before the ombudsman. The petitioner
resigned as medical officer of OMPH, alleging that the complaint against him is now moot and academic.

Issue: Whether or not petitioners conduct during the delivery of respondents baby constitute grave misconduct.

Held: Yes. Misconduct is defined as a transgression of some established and definite rule of action, more particularly
unlawful behavior or gross negligence by a public officer, a forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not mere error in judgement. It generally means wrongful, improper or unlawful conduct
motivated by a premeditated, obstinate or intentional purpose. The term, however does not necessarily imply corruption
or criminal intent. To constitute an administrative offense, misconduct should relate to or be connected with the
performance of the official functions and duties of a public officer. On the other hand, when the elements of corruption,
clear intent to violate the law or flagrant disregard of established rule are manifest, the public officer shall be liable for
grave misconduct.

In deliberately leaving the respondent to a midwife and two inexperienced assistants despite knowing that she was under
prolonged painful labor and about to give birth to a macrosomic baby by vaginal delivery, petitioner clearly committed a
dereliction of duty and a breach of his professional obligations. The gravity of respondents conditions is highlighted by
the expected complications she suffered her stillborn baby, a ruptured uterus that necessitated the immediate surgery
and blood transfusion and vulvar hematomas.

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 fore 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
patient is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable.

A doctors duty to his patient is not required to be extraordinary. The standard contemplated for doctors is simply the
reasonable coverage merit among ordinarily good physicians i.e. reasonable skill and competence. Even by this standard,
petitioner fill short when he routinely delegated an important task that requires his professional skill and competence to
his subordinates who have no requisite training and capability to make crucial decisions in difficult child births.

A physician should be dedicated to provide competent medical care with full professional skill and accordance with the
current standards of care, compassion, independence, and respect for human dignity.

CASE DIGEST: DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners, v. COURT OF APPEALS,
SPOUSES DIOGENES S. OLAVERE and FE R. SERRANO, Respondents.

FACTS: At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a victim of a stabbing
incident, was rushed to the Bicol Regional Medical Center (BRMC). Dr. Realuyo, the emergency room resident
physician, recommended that Raymond should undergo blood transfusion.

At 10:30 P.M., Raymond was brought inside the operating room. During that time, the hospital surgeons, Drs. Zafe and
Cereno, were busy operating on gunshot victim Charles Maluluy-on. Assisting them in the said operation was Dr.
Rosalina Tatad (Dr. Tatad), who was the only senior anesthesiologist on duty at BRMC that night. Just before the
operation on Maluluy-on was finished, another emergency case involving Lilia Aguila, a woman who was giving birth to
triplets, was brought to the operating room.

Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they found that the latters blood pressure
was normal and "nothing in him was significant." There being no other available anesthesiologist to assist them, Drs.
Zafe and Cereno decided to defer the operation on Raymond.

At 11:15 P.M., the relatives of Raymond brought the bag of blood to be used for blood transfusion. Drs. Cereno and
Zafe immediately started their operation on Raymond at around 12:15 A.M. of 17 September 1995. Upon opening of
Raymonds thoracic cavity, they found that 3,200 cc of blood was stocked therein. Dr. Cereno did not immediately
transfuse the blood since the bleeders had to be controlled first. Blood was finally transfused on Raymond at 1:40 A.M.
However, during the operation, Raymond died due to massive loss of blood.

Claiming that there was negligence on the part of those who attended to their son, the parents of Raymond (herein
respondents) filed a complaint for damages against Drs. Zafe and Cereno. The RTC found Drs. Zafe and Cereno
negligent for not immediately conducting surgery on Raymond. On appeal, the CA affirmed RTCs findings.

ISSUE:

Are Drs. Zafe and Cereno guilty of gross negligence in the performance of their duties?
HELD: 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 the
failure or action caused injury to the patient.

Given that Dr. Tatad was already engaged in another urgent operation and that Raymond was not showing any
symptom of suffering from major blood loss requiring an immediate operation, We find it reasonable that petitioners
decided to wait for Dr. Tatad to finish her surgery and not to call the standby anesthesiologist anymore. There is, after
all, no evidence that shows that a prudent surgeon faced with similar circumstances would decide otherwise.

In medical negligence cases, it is settled that the complainant has the burden of establishing breach of duty on the part
of the doctors or surgeons. It must be proven that such breach of duty has a causal connection to the resulting death of
the patient.

Upon opening of his thoracic cavity, it was discovered that there was gross bleeding inside the body. Thus, the need for
petitioners to control first what was causing the bleeding.

GRANTED

G.R. No. 163879 July 30, 2014

DR. ANTONIO P. CABUGAO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA and ROSARIO F. PALMA, Respondents.

x-----------------------x

G.R. No. 165805

DR. CLENIO YNZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA AND ROSARIO F. PALMA, Respondents.

DECISION

PERALTA, J.:

Before this Court are appeals via Rule 45 from the Decision1 dated June 4, 2004 of the Court of Appeals in CA-G.R. CR
No. 27293, affirming the Decision2 dated February 28,2003 of the Regional Trial Court (RTC), convicting appellant Dr.
Antonio P. Cabugao (Dr. Cabugao) and Dr. Clenio Ynzon (Dr. Ynzon) of the crime of Reckless Imprudence Resulting to
Homicide.
The Information3 alleged

That on or about June 17, 2000in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court,
the abovenamed accused, DR. ANTONIO P.CABUGAO and DR. CLENIO YNZON, being then the attending physicians
of one RODOLFO PALMA, JR., a minor 10 years old, confederating and acting jointly with one another, did, then and
there, willfully, unlawfully and feloniously fail through negligence, carelessness and imprudence to perform immediate
operation upon their patient, RODOLFO PALMA, JR. of acute appendicitis, when they, the said physicians, should have
been done so considering that examinations conducted upon their patient Rodolfo Palma, Jr. seriously manifest todo so,
causing by such negligence, carelessness, and imprudence the victim, RODOLFO PALMA JR., to die due to:

"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY, SEPTICEMIA (ACUTE APPENDICITIS),

CEREBRAL ANEURYSM RUPTURED (?)"

As per Certificate of Death issued by accused Dr. Antonio P. Cabugao, to the damage and prejudice of the legal heirs of
said deceased RODOLFO PALMA, JR. and other consequential damages relative thereto.

CONTRARY to Article 365, 1st par. of the Revised Penal Code.

Dagupan City, Philippines, January 29, 2001.

Arising from the same events, the Court resolved to consolidate these cases.4 The facts, as culled from the records, are
as follows:

On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year old Rodolfo F. Palma, Jr. (JR) complained of
abdominal pain to his mother, Rosario Palma. At 5 oclock that sameafternoon, Palma's mother and father, Atty. Rodolfo
Palma Sr., brought JR to the clinic of accused Dr. Cabugao. Dr. Cabugao, a general practitioner, specializing in
familymedicine gave medicines for the pain and told Palma's parents to call him up if his stomach pains continue. Due to
persistent abdominal pains, at 4:30 in the early morning of June 15, 2000, they returnedto Dr. Cabugao, who advised
them to bring JR to the Nazareth General Hospital in Dagupan City, for confinement. JR was admitted at the said
hospital at 5:30 in the morning.5

Blood samples were taken from JR for laboratory testing. The complete blood count conveyed the following result: wbc
27.80 x 10 9/L; lymphocytes 0.10 and neutrophils 0.90. Diagnostic ultrasound was likewise conducted on the
patient's lower abdomen by radiologist, Dr. Ricky V. Querubin, with the following findings:

Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and urinary bladder.

There is no free peritoneal fluid.

There is localized tenderness in the paraumbilical region, more so in the supra and right paraumbilical areas.

There is a vague elongated hypoechoic focus in the right periumbilical region roughly about 47 x 18 mm surrounded by
undistended gas-filled bowels. This is suggestive of an inflammatory process wherein appendiceal or periappendiceal
pathology cannot be excluded. Clinical correlation is essential."6

Dr. Cabugao did a rectal examination noting the following: "rectal: good sphincter, negative tenderness, negative mass."
The initial impression was Acute Appendicitis,7 and hence, he referred the case to his co-accused, Dr. Ynzon, a
surgeon.8 In the later part of the morning of June 15, 2000, Dr. Ynzon went to the hospital and readthe CBC and
ultrasound results. The administration of massive antibiotics and pain reliever to JRwere ordered. Thereafter, JR was
placed on observation for twenty-four (24) hours.

In the morning of June 16, 2000, JR complained again of abdominal pain and his parents noticeda swelling in his
scrotum. In the afternoon of the same day, JR vomitted out greenish stuff three (3) times and had watery bowels also
three (3) times. The nurses on-duty relayed JR's condition to Dr. Ynzon who merely gaveorders via telephone.9Accused
continued medications to alleviate JR's abdominal spasms and diarrhea. By midnight, JR again vomitted twice, had
loose bowel movements and was unable to sleep. The following morning, June 17,2000, JR's condition worsened, he
had a running fever of 38C. JR's fever remained uncontrolled and he became unconscious, he was given Aeknil (1
ampule) and Valium (1 ampule). JR's condition continued to deteriorate that by 2 o'clock in the afternoon, JR's
temperature soared to 42C, had convulsions and finally died.

The Death Certificate10 dated June 19, 2000 prepared by Dr. Cabugao indicated the following causes of death:

Immediate cause: CARDIORESPIRATORY ARREST

Antecedent cause: METABOLIC ENCEPHALOPATHY

Underlying cause: SEPTICEMIA (ACUTE APPENDICITIS)

Other significant conditionscontributing to death:

CEREBRAL ANEURYSM RUPTURED (?)

No post-mortem examination was conducted on JR. On February 1, 2001, an Information was filed against accused for
reckless imprudence resulting to homicide. At their arraignment, both accused, duly assisted by counsel, pleaded not
guilty to the charge.

On February 28, 2003, in convicting both the accused, the trial court found the following circumstances as sufficient
basis to conclude that accused were indeed negligent in the performance of their duties:

It is unquestionable that JR was under the medical care of the accused from the time of his admission for confinement
at the Nazareth General Hospital until his death. Upon his admission, the initial working diagnosis was to consider acute
appendicitis. To assist the accused in the consideration of acute appendicitis, Dr. Cabugao requested for a complete
blood count (CBC) and a diagnostic ultrasound on JR. The findings of the CBC and ultrasound showed that an
inflammatory process or infection was going on inside the body of JR. Said inflammatory process was happening in the
periumbilical region where the appendix could be located. The initial diagnosis of acute appendicitis appears to be a
distinct possibility. x x x.

Dr. Ynzon ordered medications to treat the symptoms being manifested by JR. Thereafter, he ordered that JR be
observed for 24 hours. However, the accused, as the attending physicians, did not personally monitor JR in order to
check on subtle changes that may occur. Rather, they left the monitoring and actual observation to resident physicians
who are just on residency training and in doing so, they substituted their own expertise, skill and competence with those
of physicians who are merely new doctors still on training. Not having personally observed JR during this 24-hour critical
period of observation, the accused relinquished their duty and thereby were unable to give the proper and correct
evaluation as to the real condition of JR. In situations where massive infection is going on as shown by the aggressive
medication of antibiotics, the condition of the patient is serious which necessitated personal, not delegated, attention of
attending physicians, namely JR and the accused in this case.

xxxx

Throughout the course of the hospitalization and treatment of JR, the accused failed to address the acute appendicitis
which was the initial diagnosis. They did not take steps to find out if indeed acute appendicitis was what was causing the
massive infection that was ongoing inside the body of JR even when the inflammatory process was located at the
paraumbilical region where the appendix can be located. x x x

There may have been other diseases but the records do not show that the accused took steps to find outwhat disease
exactly was plaguing JR. It was their duty to find out the disease causing the health problem of JR, but they did not
perform any process of elimination. Appendicitis, according to expert testimonies, could be eliminated only by surgery
but no surgery was done by the accused. But the accused could not have found out the real disease of JR because they
were treating merely and exclusively the symptoms by means of the different medications to arrest the manifested
symptoms. In fact, by treating the symptoms alone, the accused were recklessly and wantonly ignoring the same as
signs of the graver health problem of JR. This gross negligence on the part of the accused allowed the infection to
spread inside the body of JR unabated. The infection obviously spread so fastand was so massive that within a period
of only two and a half (2 ) days from the day of admission to the hospital on June 15, 2000, JR who was otherwise
healthy died [of] Septicemia (Acute Appendicitis) on June 17, 2000.11

On June 4, 2004, in affirming the accused' conviction, the Court of Appeals gave similar observations, to wit:

The foregoing expert testimony clearly revealed such want of reasonable skill and care on the part of JR's attending
physicians, appellants Dr. Cabugao and Dr. Ynzon in neglecting to monitor effectively and sufficiently the
developments/changes during the observation period and act upon the situation after said 24-hour period when his
abdominal pain subsisted, his condition even worsened with the appearance of more serious symptoms of nausea,
vomiting and diarrhea. Considering the brief visit only made on regular rounds, the records clearly show such gross
negligence in failing to take appropriate steps to determine the real cause of JR's abdominal pain so that the crucial
decision to perform surgery (appendectomy) had even been ruled out precisely because of the inexcusable neglect to
undertake suchefficient diagnosis by process of elimination, as correctly pointed out by the trial court. As has been
succinctly emphasized by Dr. Mateo, acute appendicitis was the working diagnosis, and with the emergence of
symptoms after the 24-hour observation (high fever, vomiting, diarrhea) still, appellants ruled out surgery, not even
considering exploratory laparoscopy. Dr. Mateo also expressed the opinion that the decision to operate could have been
made after the result of the ultrasound test, considering that acute appendicitis was the initial diagnosis by Dr. Cabugao
after he had conducted a rectal examination.

Medical records buttress the trial court's finding that in treating JR, appellants have demonstrated indifference and
neglect of the patient's condition as a serious case. Indeed, appendicitis remains a clinical emergencyand a surgical
disease, as correctly underscored by Dr. Mateo, a practicing surgeon who has already performed over a thousand
appendectomy. In fact, appendectomy is the only rational therapy for acute appendicitis; it avoids clinical deterioration
and may avoid chronic or recurrent appendicitis. Although difficult, prompt recognition and immediate treatment of the
disease prevent complications. Under the factual circumstances, the inaction, neglect and indifference of appellants
who, after the day of admission and after being apprised of the ongoing infection from the CBC and initial diagnosis as
acute appendicitis from rectal examination and ultrasound testand only briefly visited JR once during regular rounds and
gave medication orders by telephone constitutes gross negligenceleading to the continued deterioration of the patient,
his infection having spread in sofast a pace that he died within just two and a half (2 ) days stay inthe hospital.
Authorities state that if the clinical picture is unclear a short period of 4 to 6 hours of watchful waiting and a CT scan may
improve diagnostic accuracy and help to hasten diagnosis.Even assuming that JR's case had an atypical presentation in
view of the location of his appendix, laboratory tests could have helped to confirm diagnosis, as Dr. Mateo opined
thatthe possibility of JR having a retrocecal appendicitis should have been a strong consideration. Lamentably,
however, as found by the trial court, appellants had not taken steps towards correct diagnosis and demonstrated laxity
even when JR was already running a high fever in the morning of June 17, 2000 and continued vomiting with diarrhea,
his abdominal pain becoming more intense. This is the reason why private complainants were not even apprised of the
progress of appellants' diagnosis appellants have nothing to report because they did nothing towards the end and
merely gave medications to address the symptoms.12

Thus, these appeals brought beforethis Court raising the following arguments:

WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE INFORMATION IS "FAILURE TO PERFORM

IMMEDIATE OPERATION UPON THE PATIENT ROFOLFO PALMA JR. OF ACUTE APPENDICITIS;

II

WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED BOTH ACCUSED DOCTORS OF
CONSPIRACY AND THE APPEALED DECISION SEEMS TO HAVE TREATED BOTH ACCUSED DOCTORS TO BE
IN CONSPIRACY;

III
WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER (NOT A SURGEON) AND HAVE
EXCLUDED SURGERY FROM THE LIMITS OFHIS PRACTICE, AND IT WAS NOT AND NEVER HIS DUTY TO
OPERATE THE PATIENT RODOLFO PALMA JR., THAT WAS WHY HE REFERRED SUBJECT PATIENT TO A
SURGEON, DR. CLENIO YNZON;

IV

WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE THAT DOING SURGERY WOULD
HAVE SAVED THE PATIENT;

WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING PROSECUTION'S EXPERT WITNESSES
EVER DECLARED/TESTIFIED THAT PETITIONER DR. CABUGAO HAD THE DUTY TO PERFORM IMMEDIATE
OPERATION ON RODOLFO PALMA, JR., AND THEY FAILED TO STATE/SHOW THAT THE PROXIMATE CAUSE
OF DEATH OF JR WAS ACUTE APPENDICITIS;

VI

WHETHER THE EXPERT WITNESSES PRESENTED BY THE PROSECUTION EVER QUESTIONED THE
MANAGEMENT AND CARE APPLIED BY PETITIONER DR. CABUGAO;

VII

WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE ARE UNANIMOUS IN APPROVING THE
METHOD OF TREATMENT APPLIED BY BOTH ACCUSED DOCTORS ON SUBJECT PATIENT, AND THEY
DECLARED/AFFIRMED THAT THEY WOULD FIRST PLACE SUBJECT THE PATIENT UNDER OBSERVATION, AND
WOULD NOT PERFORM IMMEDIATE OPERATION;

VIII

WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS ESTABLISHED WITH THE REQUIRED
QUANTUM OF PROOF BEYOND REASONABLE DOUBT THAT THE PATIENT WAS SPECIFICALLY SUFFERING
FROM AND DIED OF ACUTE APPENDICITIS; and

IX

WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL OPERATION KNOWN AS APPENDECTOMY
CONSTITUTED CRIMINAL NEGLIGENCE.

In a nutshell, the petition brought before this Court raises the issue of whether or not petitioners' conviction of the crime
of reckless imprudence resulting in homicide, arising from analleged medical malpractice, is supported by the evidence
on record.

Worth noting is that the assigned errors are actually factual in nature, which as a general rule, findings of factof the trial
court and the Court of Appeals are binding and conclusiveupon this Court, and we will not normally disturb such factual
findings unless the findings of the court are palpably unsupported by the evidence on record or unless the judgment
itself is based on misapprehension of facts. Inthe instant case, we find the need to make certain exception.

AS TO DR. YNZON'S LIABILITY:

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 precautionon the part of the person performing or failing to perform such
act.13 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 bewithout 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.14

With respect to Dr. Ynzon, all the requisites of the offense have been clearly established by the evidence on record. The
court a quoand the appellate court were one in concluding that Dr. Ynzon failed to observe the required standard of care
expected from doctors.

In the instant case, it was sufficiently established that to prevent certain death, it was necessary to perform surgery on
JR immediately. Even the prosecutions own expert witness, Dr. Antonio Mateo,15 testified during cross-examination that
he would perform surgery on JR:

ATTY. CASTRO:

Q. Given these data soft non-tender abdomen, ambulatory, watery diarrhea, Exhibit C which is the ultrasound result,
with that laboratory would you operate the patient?

A Yes, I would do surgery.

Q And you should have done surgery with this particular case?"

A Yes, sir.16

xxxx

COURT:

Q You stated a while ago doctor thatyou are going to [do] surgery to the patient, why doctor, if you are notgoing to do
surgery, what will happen?

A If this would be appendicitis, the usual progress would be that it would be ruptured and generalized peritonitis and
eventually septicemia, sir.

Q What do you mean by that doctor?

A That means that infection would spread throughout the body, sir.

Q If unchecked doctor, what will happen?

A It will result to death.17

xxxx

Q And what would have you doneif you entertain other considerations from the time the patient was admitted?

A From the time the patient was admitted until the report of the sonologist, I would have made a decision by then.

Q And when to decide the surgery would it be a particular exact time, would it be the same for all surgeons?

A If you are asking acute appendicitis, it would be about 24 hours because acute appendicitis is a 24-hour disease, sir.

Q. And would it be correct to say that it depends on the changes on the condition of the patient?

A. Yes, sir.
Q. So, are you saying more than 24 hours when there are changes?

A. If there are changes in the patient pointing towards appendicitis then you have to decide right there and then, sir.

Q. So if there are changes in the patient pointing to appendicitis?

A. It depends now on what you are trying to wait for in the observation period, sir.

Q. So precisely if the change is a condition which bring you in doubt that there is something else other than appendicitis,
would you extend over a period of 24 hours?

A. It depends on the emergent development, sir.

Q. That is the point, if you are the attending physician and there is a change not pointing to appendicitis, would you
extend over a period of 24 hours?

A. In 24 hours you have to decide, sir.

xxxx

Q. And that is based on the assessment of the attending physician?

A. Yes, sir.18

Dr. Mateo further testified on cross-examination:

ATTY. CASTRO:

Q: So you will know yourself, as far as the record is concerned, because if you will agree with me, you did not even
touch the patient?

A. Yes, I based my opinion on what is put on record, sir. The records show that after the observation period, the
abdominal pain is still there plus there are already other signs and symptoms which are not seen or noted.

Q. But insofar as you yourself not having touched the abdomen of the patient, would you give a comment on that?

A. Yes, based on the record, after 24 hours of observation, the pain apparently was still there and there was more
vomiting and there was diarrhea. In my personal opinion, I think the condition of the patient was deteriorating.

Q. Even though you have not touched the patient?

A. I based on what was on the record, sir.19

From the foregoing, it is clear that if JRs condition remained unchecked it would ultimately result in his death, as what
actually happened in the present case. Another expert witness for the defense, Dr. Vivencio Villaflor, Jr. testified on
direct examination that he would perform a personal and thorough physical examination of the patient as frequent as
every 4 to 6 hours, to wit:

ATTY. CASTRO:

Q. As an expert doctor, if you were faced with a history of abdominal pain with nausea, vomiting, fever, anurecia (sic),
elevated white blood cell count, physical examination of a positive psoas sign, observation of the sonologist of
abdominal tenderness and the ultrasound findings of the probability of appendiceal (sic) pathology, what will you do if
you have faced these problems, Doctor?
A. I will examine the patient thoroughly and it will depend on my physical examination and that isprobably every 4 to 6
hours, sir.20

On cross-examination, Dr. Villaflor affirmed:

Cross Exam. By Atty. Marteja:

Q. x x x However, there are corrections and admissions made at that time, your Honor, do I understand thatT/C does
not mean ruled out but rather to consider the matter?

A. Yes, now that I have seen the records of the patient, it says here, impression and T/C means to consider the
appendicitis.

Q. Isn't it that it is worth then to say that the initial working diagnosis on Rodolfo Palma, Jr., otherwise known as JR, to
whom I shall now refer to as JR, the primary consideration then is acute appendicitis, is that correct to say Doctor?

A. I think so, that is the impression.

Q. x x x Now if it is to be considered as the primary consideration in the initial working diagnosis, isn't it a fact that it has
tobe ruled out in order to consider it as not the disease of JR?

A. Yes. Sir.

Q. Isn't it a fact thatto rule out acute appendicitis as not the disease of JR, surgery or operation must be done, isn't it
Doctor?

A. You have to correlate all the findings.

Q. Is it yes or no, Doctor?

A. Yes.

Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation, that is right Doctor?

A. No, sir. If your diagnosis is toreally determine if it is an acute appendicitis, you have to operate.21

xxxx

Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain, considering that JR
likewise was feverish and that he was vomiting, does that not show a disease of acute appendicitis Doctor?

A. Its possible.

Q. So that if that is possible, are we getting the impression then Doctor what you have earlier mentioned that the only
way to rule out the suspect which is acute appendicitis is by surgery, you have said that earlier Doctor, I just want any
confirmation of it?

A. Yes, sir.22

Verily, 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. The deference of courts to the expert opinions of qualified
physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating.23 From the testimonies of the expert witnesses presented, it was irrefutably proven
that Dr. Ynzon failed to practice that degree of skill and care required in the treatment of his patient.
As correctly observed by the appellate court, Dr. Ynzon revealed want of reasonable skill and care in attending to the
needs of JR by neglecting to monitor effectively the developmentsand changes on JR's condition during the observation
period, and to act upon the situation after the 24-hour period when his abdominal pain persisted and his condition
worsened. Lamentable, Dr. Ynzon appeared to have visited JRbriefly only during regular rounds in the mornings. He
was not there during the crucial times on June 16, 2000 when JR's condition started to deteriorate until JR's death. As
the attending surgeon, he should be primarily responsible in monitoring the condition of JR, as he is in the best position
considering his skills and experience to know if the patient's condition had deteriorated. While the resident-doctors-
onduty could likewise monitor the patientscondition, he is the one directly responsible for the patient as the attending
surgeon. Indeed, it is reckless and gross negligence of duty to relegate his personal responsibility to observe the
condition of the patient. Again, acute appendicitis was the working diagnosis, and with the emergence of graver
symptoms after the 24-hour observation, Dr. Ynzon ruled out surgery for no apparent reason. We, likewise, note that the
records are devoid of showing of any reasonable cause which would lead Dr. Ynzon tooverrule appendectomy despite
the initial diagnosis of appendicitis. Neitherwas there any showing that he was entertaining another diagnosis nor he
took appropriate steps towards another diagnosis.

Among the elements constitutive of reckless imprudence, what perhaps is most central to a finding of guilt is the
conclusive determination that the accused has exhibited, by his voluntary act without malice, an inexcusable lack of
precaution. It is that which supplies the criminal intent so indispensable as tobring an act of mere negligence and
imprudence under the operation of the penal law. This is because a conscious indifference to the consequences of the
conduct is all that is required from the standpoint of the frame of mind of the accused.24 Quasioffenses penalize the
mental attitudeor condition behind the act, the dangerous recklessness, the lack of care or foresight, the "imprudencia
punible," unlike willful offenses which punish the intentional criminal act.25 This is precisely where this Court found Dr.
Ynzon to be guilty of - his seemingly indifference to the deteriorating condition of JR that he as a consequence, failed to
exercise lack of precaution which eventually led to JR's death.

To be sure, 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 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. 26 Sadly, Dr. Ynzon did not display that
degree of care and precaution demanded by the circumstances.

AS TO DR. CABUGAO'S LIABILITY:

Every criminal conviction requires of the prosecution to prove two things the fact of the crime, i.e., the presence of all
the elements of the crime for which the accused stands charged, and the fact that the accused is the perpetrator of the
crime. Based on the above disquisitions, however, the prosecution failed to prove these two things. The Court is not
convinced with moral certainty that Dr. Cabugao isguilty of reckless imprudence as the elements thereof were not
proven by the prosecution beyond a reasonable doubt.

Both the trial court and the appellate court bewail the failure to perform appendectomy on JR, or the failure to determine
the source of infection which caused the deterioration of JR's condition. However, a review of the records fail to show
that Dr. Cabugao is in any position to perform the required appendectomy.

Immediately apparent from a review of the records of this case is the fact that Dr. Cabugao is not a surgeon,but a
general practitioner specializing in family medicine;27 thus, even if he wanted to, he cannot do an operation, much less
an appendectomy on JR. It is precisely for this reason why he referred JR to Dr. Ynzon after he suspected appendicitis.
Dr. Mateo, the prosecutions expert witness, emphasized the role of the surgeon during direct examination, to wit:

ATTY. MARTEJA:

Q. You had mentioned that under this circumstances and condition, you have mentioned that surgery is the solution,
would you have allowed then a 24 hour observation?
A. If there is a lingering doubt, inshort period of observation of 18-24 hours can be allowed provided that there would be
close monitoring of the patient, sir.

Q. Would you please tell us who would be doing the monitoring doctor?

A. The best person should be the first examiner, the best surgeon, sir.

Q. So that would you say that it is incumbent on the surgeon attending to the case to have been the one to observe
within the period of observation?

A. Yes, because he will be in the best position to observe the sudden changes in the condition of the patient, sir.

Q. And how often would in your experience doctor, how often would the surgeon re-assist (sic) the condition of the
patient during the period of observation?

A. Most foreign authors would recommend every four (4) hours, some centers will recommend hourly or every two hours
but here in the Philippines, would recommend for 4 to 6 hours, sir.28

Dr. Cabugaos supervision does not cease upon his endorsement of his patient to the surgeon. Here, Dr. Cabugao has
shown to have exerted all efforts to monitor his patient and under these circumstances he did not have any cause to
doubt Dr. Ynzons competence and diligence. Expert testimonies have been offered to prove the circumstances
surrounding the case of JR and the need to perform an operation. Defense witness, Dr. Villaflor, on cross examination
testified, to wit:

Q. Isn't it a fact that torule out acute appendicitis as notthe disease of JR, surgery or operation mustbe done, isn't it
Doctor?

A. You have to [correlate] all the findings.

Q. Is it yes or no, Doctor?

A. Yes.

Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation, that is right Doctor?

A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis, you have to operate. 29

xxxx

Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain, considering that JR
likewise was feverish and that he was vomitting, does that not show a disease of acute appendicitis Doctor?

A. Its possible.

Q. So that if that is possible, are we getting the impression then Doctor what you have earlier mentioned that the only
way to rule out the suspect which is acute appendicitis is by surgery, you have said that earlier Doctor, I just want any
confirmation of it?

A. Yes, sir.30

Neither do we find evidence that Dr. Cabugao has been negligent or lacked the necessary precaution in his
performance of his duty as a family doctor. On the contrary, a perusal ofthe medical records would show that during the
24-hour monitoring on JR, it was Dr. Cabugao who frequently made orders on the administration of antibiotics and pain
relievers. There was also repetitive instructions from Dr. Cabugao to refer JR to Dr. Ynzon as it appeared that he is
suspecting appendicitis. The referral of JR to Dr. Ynzon, a surgeon, is actually an exercise of precaution as he knew
that appendicitis is not within his scope of expertise. This clearly showed that he employed the best of his knowledge
and skill in attending to JR's condition, even after the referral of JR to Dr. Ynzon. To be sure, the calculated assessment
of Dr. Cabugao to refer JRto a surgeon who has sufficient training and experience to handle JRs case belies the finding
that he displayed inexcusable lack of precaution in handling his patient.31

We likewise note that Dr. Cabugao was out of town when JR's condition began to deteriorate. Even so, before he left,
he made endorsement and notified the resident-doctor and nurses-on-duty that he will be on leave.

Moreover, while both appeared to be the attending physicians of JR during his hospital confinement, it cannot be said
that the finding of guilt on Dr. Ynzon necessitates the same finding on the co-accused Dr. Cabugao. Conspiracy is
inconsistent with the idea of a felony committed by means of culpa.32 Thus, the accused-doctors to be found guilty of
reckless imprudence resulting in homicide, it must be shown that both accused-doctors demonstratedan act executed
without malice or criminal intent but with lack of foresight, carelessness, or negligence. Noteworthy, the evidence on
record clearly points to the reckless imprudence of Dr. Ynzon; however, the same cannot be said in Dr. Cabugao's case.

AS TO CIVIL LIABILITY

While this case is pending appeal, counsel for petitioner Dr. Ynzon informed the Court that the latter died on December
23, 2011 due to "multiorgan failure" as evidenced by a copy of death certificate. 33 Thus, the effect of death, pending
appeal of his conviction of petitioner Dr. Ynzon with regard to his criminal and pecuniary liabilities should be in
accordance to People v. Bayotas,34 wherein the Court laid down the rules in case the accused dies prior to final
judgment:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil
liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to
final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on
the offense committed, i.e.,civil liability ex delictoin senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be
predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other
sources of obligation fromwhich the civil liability may arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) x x x x x x x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil action may be enforced either againstthe
executor/administrator or the estate of the accused, depending on the source of obligation upon which the same
is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil action. In such case, the statute of limitationson the civil
liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article
1155 of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by
prescription.35
In view of the foregoing, it is clear that the death of the accused Dr. Ynzon pending appeal of his conviction extinguishes
his criminal liability. However, the recovery of civil liability subsists as the same is not based on delictbut by contract and
the reckless imprudence he was guilty of under Article 365 of the Revised Penal Code.1wphi1For this reason, a
separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending
on the source of obligation upon which the same is based,36 and in accordance with Section 4, Rule 111 of the Rules on
Criminal Procedure, we quote:

Sec. 4. Effect of death on civil actions. The death of the accused after arraignment and during the pendency of the
criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted
under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation
may be continued against the estate or legal representative of the accused after proper substitution or against said
estate, as the case may be. The heirs of the accused may besubstituted for the deceased without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period
of thirty (30) days from notice.

A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules
for prosecuting claims against the estate of the deceased.

If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended
party may file against the estate of the deceased. (Emphases ours)

In sum, upon the extinction of the criminal liability and the offended party desires to recover damages from the same act
or omission complained of, the party may file a separate civil action based on the other sources of obligation in
accordance with Section 4, Rule 111.37 If the same act or omission complained of arises from quasi-delict,as in this
case, a separate civil action must be filed against the executor or administrator of the estate of the accused, pursuant to
Section 1, Rule 87 of the Rules of Court:38

Section 1. Actions which may and which may not be brought against executor or administrator. No action upon a
claim for the recovery of money or debtor interest thereon shall be commenced against the executor or administrator;
but to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions
to recover damages for an injury to person or property, real or personal, may be commenced against him. (Emphases
ours)

Conversely, if the offended party desires to recover damages from the same act or omission complained of arising from
contract, the filing of a separate civil action must be filed against the estate, pursuant to Section 5, Rule 86 of the Rules
of Court, to wit:

Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. All claims for money against
the decent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for
funeral expenses and expense for the last sickness of the decedent, and judgment for money against the decent, must
be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as
counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or
administrator commencesan action, or prosecutes an action already commenced by the deceased in his lifetime, the
debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the
court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is
rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate,
as though the claim had been presented directly beforethe court in the administration proceedings. Claims not yet due,
or contingent, may be approved at their present value.

As a final note, we reiterate thatthe policy against double recovery requires that only one action be maintained for the
same act or omission whether the action is brought against the executor or administrator, or the estate. 39 The heirs of
JR must choose which of the available causes of action for damages they will bring.
WHEREFORE, premises considered, petitioner DR. ANTONIO P. CABUGAO is hereby ACQUITTEDof the crime of
reckless imprudence resulting to homicide.

Due to the death of accused Dr. Clenio Ynzon prior to the disposition of this case, his criminal liability is extinguished;
however, his civil liability subsists. A separate civil action may be filed either against the executor/administrator, or the
estateof Dr. Ynzon, depending on the source of obligation upon which the same are based.

SO ORDERED.

G.R. No. 171127, March 11, 2015

NOEL CASUMPANG, RUBY SANGA-MIRANDA AND SAN JUAN DE DIOS HOSPITAL, Petitioners, v.NELSON
CORTEJO, Respondent.

[G.R. No. 171217]

DRA. RUBY SANGA-MIRANDA, Petitioner, v. NELSON CORTEJO, Respondent.

[G.R. No. 171228]

SAN JUAN DE DIOS HOSPITAL, Petitioner, v. NELSON CORTEJO, Respondent.

DECISION

BRION, J.:

We resolve the three (3) consolidated petitions for review on certiorari1 involving medical negligence, commonly
assailing the October 29, 2004 decision2 and the January 12, 2006 resolution3 of the Court of Appeals (CA) in CA-G.R.
CV No. 56400. This CA decision affirmed en toto the ruling of the Regional Trial Court (RTC), Branch 134, Makati City.

The RTC awarded Nelson Cortejo (respondent) damages in the total amount of P595,000.00, for the wrongful death of
his son allegedly due to the medical negligence of the petitioning doctors and the hospital.

Factual Antecedents

The common factual antecedents are briefly summarized below.

On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11-year old son, Edmer Cortejo
(Edmer), to the Emergency Room of the San Juan de Dios Hospital (SJDH) because of difficulty in breathing, chest
pain, stomach pain, and fever.4

Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her testimony, Mrs. Cortejo narrated that
in the morning of April 20, 1988, Edmer had developed a slight fever that lasted for one day; a few hours upon
discovery, she brought Edmer to their family doctor; and two hours after administering medications, Edmer's fever had
subsided.5

After taking Edmer's medical history, Dr. Livelo took his vital signs, body temperature, and blood pressure. 6 Based on
these initial examinations and the chest x-ray test that followed, Dr. Livelo diagnosed Edmer with
"bronchopneumonia."7 Edmer's blood was also taken for testing, typing, and for purposes of administering antibiotics.
Afterwards, Dr. Livelo gave Edmer an antibiotic medication to lessen his fever and to loosen his phlegm.

Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was referred to an accredited
Fortune Care coordinator, who was then out of town. She was thereafter assigned to Dr. Noel Casumpang (Dr.
Casumpang), a pediatrician also accredited with Fortune Care.8
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined Edmer in his room. Using only a
stethoscope, he confirmed the initial diagnosis of "Bronchopneumonia."9

At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor's diagnosis. She immediately advised Dr.
Casumpang that Edmer had a high fever, and had no colds or cough10 but Dr. Casumpang merely told her that her
son's "bloodpressure is just being active,"11 and remarked that "that's the usual bronchopneumonia, no colds, no
phlegm."12

Dr. Casumpang next visited and examined Edmer at 9:00 in the morning the following day.13 Still suspicious about his
son's illness, Mrs. Cortejo again called Dr. Casumpang's attention and stated that Edmer had a fever, throat irritation, as
well as chest and stomach pain. Mrs. Cortejo also alerted Dr. Casumpang about the traces of blood in Edmer's sputum.
Despite these pieces of information, however, Dr. Casumpang simply nodded, inquired if Edmer has an asthma, and
reassured Mrs. Cortejo that Edmer's illness is bronchopneumonia.14

At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood streak"15prompting the respondent
(Edmer's father) to request for a doctor at the nurses' station.16

Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the resident physicians of SJDH, arrived. She
claimed that although aware that Edmer had vomited "phlegm with blood streak," she failed to examine the blood
specimen because the respondent washed it away. She then advised the respondent to preserve the specimen for
examination.

Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's head, eyes, nose, throat, lungs, skin and
abdomen; and found that Edmer had a low-grade non-continuing fever, and rashes that were not typical of dengue
fever.17 Her medical findings state:
the patient's rapid breathing and then the lung showed sibilant and the patient's nose is flaring which is a sign that the
patient is in respiratory distress; the abdomen has negative finding; the patient has low grade fever and not continuing;
and the rashes in the patient's skin were not "Herman's Rash" and not typical of dengue fever. 18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Miranda, the respondent showed her
Edmer's blood specimen, and reported that Edmer had complained of severe stomach pain and difficulty in moving his
right leg.19

Dr. Miranda then examined Edmer's "sputum with blood" and noted that he was bleeding. Suspecting that he could be
afflicted with dengue, she inserted a plastic tube in his nose, drained the liquid from his stomach with ice cold normal
saline solution, and gave an instruction not to pull out the tube, or give the patient any oral medication.

Dr. Miranda thereafter conducted a tourniquet test, which turned out to be negative. 20 She likewise ordered the
monitoring of the patient's blood pressure and some blood tests. Edmer's blood pressure was later found to be normal. 21

At 4:40 in the afternoon, Dr. Miranda called up Dr. Casumpang at his clinic and told him about Edmer's
condition.22 Upon being informed, Dr. Casumpang ordered several procedures done including: hematocrit, hemoglobin,
blood typing, blood transfusion and tourniquet tests.

The blood test results came at about 6:00 in the evening.

Dr. Miranda advised Edmer's parents that the blood test results showed that Edmer was suffering from "Dengue
Hemorrhagic Fever." One hour later, Dr. Casumpang arrived at Edmer's room and he recommended his transfer to the
Intensive Care Unit (ICU), to which the respondent consented. Since the ICU was then full, Dr. Casumpang suggested
to the respondent that they hire a private nurse. The respondent, however, insisted on transferring his son to Makati
Medical Center.

After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked Edmer's condition, found that his
blood pressure was stable, and noted that he was "comfortable." The respondent requested for an ambulance but he
was informed that the driver was nowhere to be found. This prompted him to hire a private ambulance that cost him
P600.00.23
At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred to Makati Medical
Center.

Dr. Casumpang immediately gave the attending physician the patient's clinical history and laboratory exam results.
Upon examination, the attending physician diagnosed "Dengue Fever Stage IV" that was already in its irreversible
stage.

Edmer died at 4:00 in the morning of April 24, 1988.24 His Death Certificate indicated the cause of death as
"Hypovolemic Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."

Believing that Edmer's death was caused by the negligent and erroneous diagnosis of his doctors, the respondent
instituted an action for damages against SJDH, and its attending physicians: Dr. Casumpang and Dr. Miranda
(collectively referred to as the "petitioners") before the RTC of Makati City.

The Ruling of the Regional Trial Court

In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and awarded actual and moral damages,
plus attorney's fees and costs.

In ruling that the petitioning doctors were negligent, the RTC found untenable the petitioning doctors' contention that
Edmer's initial symptoms did not indicate dengue fever. It faulted them for heavily relying on the chest x-ray result and
for not considering the other manifestations that Edmer's parents had relayed. It held that in diagnosing and treating an
illness, the physician's conduct should be judged not only by what he/she saw and knew, but also by what he/she could
have reasonably seen and known. It also observed that based on Edmer's signs and symptoms, his medical history and
physical examination, and also the information that the petitioning doctors gathered from his family members, dengue
fever was a reasonably foreseeable illness; yet, the petitioning doctors failed to take a second look, much less, consider
these indicators of dengue.

The trial court also found that aside from their self-serving testimonies, the petitioning doctors did not present other
evidence to prove that they exercised the proper medical attention in diagnosing and treating the patient, leading it to
conclude that they were guilty of negligence.

The RTC also held SJDH solidarity liable with the petitioning doctors for damages based on the following findings of
facts: first, Dr. Casumpang, as consultant, is an ostensible agent of SJDH because before the hospital engaged his
medical services, it scrutinized and determined his fitness, qualifications, and competence as a medical practitioner;
and second, Dr. Miranda, as resident physician, is an employee of SJDH because like Dr. Casumpang, the hospital,
through its screening committee, scrutinized and determined her qualifications, fitness, and competence before
engaging her services; the hospital also exercised control over her work.

The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering the latter to
pay solidarity and severally plaintiff the following:

(1) Moral damages in the amount of P500,000.00;

(2) Costs of burial and funeral in the amount of P45,000.00;

(3) Attorney's fees of P50,000.00; and

(4) Cost of this suit.

SO ORDERED.
The petitioners appealed the decision to the CA.
 The Ruling of the Court of Appeals

In its decision dated October 29, 2004, the CA affirmed en toto the RTC's ruling, finding that SJDH and its attending
physicians failed to exercise the minimum medical care, attention, and treatment expected of an ordinary doctor under
like circumstances.

The CA found the petitioning doctors' failure to read even the most basic signs of "dengue fever" expected of an
ordinary doctor as medical negligence. The CA also considered the petitioning doctors' testimonies as self-serving,
noting that they presented no other evidence to prove that they exercised due diligence in diagnosing Edmer's illness.

The CA likewise found Dr. Rodolfo Jaudian's (Dr. Jaudian) testimony admissible. It gave credence to his
opinion26 that: (1) given the exhibited symptoms of the patient, dengue fever should definitely be considered, and
bronchopneumonia could be reasonably ruled out; and (2) dengue fever could have been detected earlier than 7:30 in
the evening of April 23, 1988 because the symptoms were already evident; and agreed with the RTC that the petitioning
doctors should not have solely relied on the chest-x-ray result, as it was not conclusive.

On SJDH's solidary liability, the CA ruled that the hospital's liability is based on Article 2180 of the Civil Code. The CA
opined that the control which the hospital exercises over its consultants, the hospital's power to hire and terminate their
services, all fulfill the employer-employee relationship requirement under Article 2180.

Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the diligence of a good father of a
family in the hiring and the supervision of its physicians.

The petitioners separately moved to reconsider the CA decision, but the CA denied their motion in its resolution of
January 12, 2006; hence, the present consolidated petitions pursuant to Rule 45 of the Rules of Court.

The Petitions

I. Dr. Casumpang's Position (G.R. No. 171127)

Dr. Casumpang contends that he gave his patient medical treatment and care to the best of his abilities, and within the
proper standard of care required from physicians under similar circumstances. He claims that his initial diagnosis of
bronchopneumonia was supported by the chest x-ray result.

Dr. Casumpang also contends that dengue fever occurs only after several days of confinement. He alleged that when
he had suspected that Edmer might be suffering from dengue fever, he immediately attended and treated him.

Dr. Casumpang likewise raised serious doubjs on Dr. Jaudian's credibility, arguing that the CA erred in appreciating his
testimony as an expert witness since he lacked the necessary training, skills, and experience as a specialist in dengue
fever cases.

II. Dr. Miranda's Position (G.R. No. 171217)

In her petition, Dr. Miranda faults the CA for holding her responsible for Edmer's wrong diagnosis, stressing that the
function of making the diagnosis and undertaking the medical treatment devolved upon Dr. Casumpang, the doctor
assigned to Edmer, and who confirmed "bronchopneumonia."

Dr. Miranda also alleged that she exercised prudence in performing her duties as a physician, underscoring that it was
her professional intervention that led to the correct diagnosis of "Dengue Hemorrhagic Fever." Furthermore, Edmer's
Complete Blood Count (CBC) showed leukopenia and an increase in balance as shown by the differential count,
demonstrating that Edmer's infection, more or less, is of bacterial and not viral in nature.

Dr. Miranda as well argued that there is no causal relation between the alleged erroneous diagnosis and medication for
"Bronchopneumonia," and Edmer's death due to "Dengue Hemorrhagic Fever."

Lastly, she claimed that Dr. Jaudian is not a qualified expert witness since he never presented any evidence of formal
residency training and fellowship status in Pediatrics.

III. SJDH's Position (G.R. No. 171228)

SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr. Miranda are mere independent
contractors and "consultants" (not employees) of the hospital. SJDH alleges that since it did not exercise control or
supervision over the consultants' exercise of medical profession, there is no employer-employee relationship between
them, and consequently, Article 2180 of the Civil Code does not apply.

SJDH likewise anchored the absence of, employer-employee relationship on the following circumstances: (1) SJDH
does not hire consultants; it only grants them privileges to admit patients in the hospital through accreditation; (2) SJDH
does not pay the consultants wages similar to an ordinary employee; (3) the consultants earn their own professional
fees directly from their patients; SJDH does not fire or terminate their services; and (4) SJDH does not control or
interfere with the manner and the means the consultants use in the treatment of their patients. It merely provides them
with adequate space in exchange for rental payment.

Furthermore, SJDH claims that the CA erroneously applied the control test when it treated the hospital's practice of
accrediting consultants as an exercise of control. It explained that the control contemplated by law is that which the
employer exercises over the: (i) end result; and the (ii) manner and means to be used to reach this end, and not any
kind of control, however significant, in accrediting the consultants.

SJDH moreover contends that even if the petitioning doctors are considered employees and not merely consultants of
the hospital, SJDH cannot still be held solidarity liable under Article 2180 of the Civil Code because it observed the
diligence of a good father of a family in their selection and supervision as shown by the following: (1) the adequate
measures that the hospital undertakes to ascertain the petitioning doctors' qualifications and medical competence; and
(2) the documentary evidence that the petitioning doctors presented to prove their competence in the field of
pediatrics.27

SJDH likewise faults the CA for ruling that the petitioning doctors are its agents, claiming that this theory, aside from
being inconsistent with the CA's finding of employment relationship, is unfounded because: first, the petitioning doctors
are independent contractors, not agents of SJDH; and second, as a medical institution, SJDH cannot practice medicine,
much more, extend its personality to physicians to practice medicine on its behalf.

Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced and correct diagnosis. It claimed
that based on Edmer's signs and symptoms at the time of admission (i.e., one day fever,28bacterial infection,29 and lack
of hemorrhagic manifestations30), there was no reasonable indication yet that he was suffering from dengue fever, and
accordingly, their failure to diagnose dengue fever, does not constitute negligence on their part.

The Case for the Respondent

In his comment, the respondent submits that the issues the petitioners raised are mainly factual in nature, which a
petition for review on certiorari under Rule 45 of the Rules of Court does not allow.

In any case, he contends that the petitioning doctors were negligent in conducting their medical examination and
diagnosis based on the following: (1) the petitioning doctors failed to timely diagnose Edmer's correct illness due to their
non-observance of the proper and acceptable standard of medical examination; (2) the petitioning doctors' medical
examination was not comprehensive, as they were always in a rush; and (3) the petitioning doctors employed a
guessing game in diagnosing bronchopneumonia.

The respondent also alleges that there is a causal connection between the petitioning doctors' negligence and Edmer's
untimely death, warranting the claim for damages.

The respondent, too, asserted that SJDH is also negligent because it was not equipped with proper paging system, has
no bronchoscope, and its doctors are not proportionate to the number of its patients. He also pointed out that out of the
seven resident physicians in the hospital, only two resident physicians were doing rounds at the time of his son's
confinement.
 The Issues

The case presents to us the following issues:

1. Whether or not the petitioning doctors had committed "inexcusable lack of precaution" in diagnosing and in
treating the patient;

2. Whether or not the petitioner hospital is solidarity liable with the petitioning doctors;

3. Whether or not there is a causal connection between the petitioners' negligent act/omission and the patient's
resulting death; and

4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian as an expert witness.

Our Ruling

We find the petition partly meritorious.

A Petition for Review on Certiorari under Rule 45 of the Rules of Court is Limited to Questions of Law.

The settled rule is that the Court's jurisdiction in a petition for review on certiorari under Rule 45 of the Rules of Court is
limited only to the review of pure questions of law. It is not the Court's function to inquire on the veracity of the appellate
court's factual findings and conclusions; this Court is not a trier of facts.31

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of
fact when the doubt arises as to the truth or falsity of the alleged facts.32

These consolidated petitions before us involve mixed questions of fact and law. As a rule, we do not resolve
questions of fact. However, in determining the legal question of whether the respondent is entitled to claim damages
under Article 2176 of the Civil Code for the petitioners' alleged medical malpractice, the determination of the factual
issues - i.e., whether the petitioning doctors were grossly negligent in diagnosing the patient's illness, whether there is
causal relation between the petitioners' act/omission and the patient's resulting death, and whether Dr. Jaudian is
qualified as an expert witness - must necessarily be resolved. We resolve these factual questions solely for the purpose
of determining the legal issues raised.

Medical Malpractice Suit as a Specialized Area of Tort Law

The claim for damages is based on the petitioning doctors' negligence in diagnosing and treating the deceased Edmer,
the child of the respondent. It is a medical malpractice suit, an action available to victims to redress a wrong
committed by medical professionals who caused bodily harm to, or the death of, a patient.33 As the term is used, the suit
is brought whenever a medical practitioner or health care provider fails to meet the standards demanded by his
profession, or deviates from this standard, and causes injury to the patient.

To successfully pursue a medical malpractice suit, the plaintiff (in this case, the deceased patient's heir) must prove that
the doctor either failed to do what a reasonably prudent doctor would have done, or did what a reasonably prudent
doctor would not have done; and the act or omission had caused injury to the patient. 34 The patient's heir/s bears the
burden of proving his/her cause of action.

The Elements of a Medical Malpractice Suit

The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate causation.

Duty refers to the standard of behavior that imposes restrictions on one's conduct.35 It requires proof of professional
relationship between the physician and the patient. Without the professional relationship, a physician owes no duty to
the patient, and cannot therefore incur any liability.
A physician-patient relationship is created when a patient engages the services of a physician, 36 and the latter accepts
or agrees to provide care to the patient.37 The establishment of this relationship is consensual,38 and the acceptance by
the physician essential. The mere fact that an individual approaches a physician and seeks diagnosis, advice or
treatment does not create the duty of care unless the physician agrees.39

The consent needed to create the relationship does not always need to be express.40 In the absence of an express
agreement, a physician-patient relationship may be implied from the physician's affirmative action to diagnose and/or
treat a patient, or in his participation in such diagnosis and/or treatment.41 The usual illustration would be the case of a
patient who goes to a hospital or a clinic, and is examined and treated by the doctor. In this case, we can infer, based
on the established and customary practice in the medical community that a patient-physician relationship exists.

Once a physician-patient relationship is established, the legal duty of care follows. The doctor accordingly becomes
duty-bound to use at least the same standard of care that a reasonably competent doctor would use to treat a medical
condition under similar circumstances.

Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under professional
standards. This determination is both factual and legal, and is specific to each individual case.42

If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is committed,
entitling the patient to damages.43

To successfully claim damages, the patient must lastly prove the causal relation between the negligence and the injury.
This connection must be direct, natural, and should be unbroken by any intervening efficient causes. In other words, the
negligence must be the proximate cause of the injury.44 The injury or damage is proximately caused by the
physician's negligence when it appears, based on the evidence and the expert testimony, that the negligence played an
integral part in causing the injury or damage, and that the injury or damage was either a direct result, or a reasonably
probable consequence of the physician's negligence.45

a. The Relationship Between Dr. Casumpang and Edmer

In the present case, the physician-patient relationship between Dr. Casumpang and Edmer was created when the
latter's parents sought the medical services of Dr. Casumpang, and the latter knowingly accepted Edmer as a patient.
Dr. Casumpang's acceptance is implied from his affirmative examination, diagnosis and treatment of Edmer. On the
other hand, Edmer's parents, on their son's behalf, manifested their consent by availing of the benefits of their health
care plan, and by accepting the hospital's assigned doctor without objections.

b. The Relationship Between Dr. Miranda and Edmer

With respect to Dr. Miranda, her professional relationship with Edmer arose when she assumed the obligation to provide
resident supervision over the latter. As second year resident doctor tasked to do rounds and assist other physicians, Dr.
Miranda is deemed to have agreed to the creation of physician-patient relationship with the hospital's patients when she
participated in the diagnosis and prescribed a course of treatment for Edmer.

The undisputed evidence shows that Dr. Miranda examined Edmer twice (at around 12:00 and 3:30 in the afternoon of
April 23, 1988), and in both instances, she prescribed treatment and participated in the diagnosis of Edmer's medical
condition. Her affirmative acts amounted to her acceptance of the physician-patient relationship, and incidentally, the
legal duty of care that went with it.

In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely passed by and were requested to
attend to the patient, liable for medical malpractice. It held that a physician-patient relationship was established when
they examined the patient, and later assured the mother that everything was fine.

In the US case of Mead v. Legacy Health System,47 the Court also considered the rendering of an opinion in the course
of the patient's care as the doctor's assent to the physician-patient relationship. It ruled that the relationship was formed
because of the doctor's affirmative action.
Likewise, in Wax v. Johnson,48 the court found that a physician-patient relationship was formed between a physician
who "contracts, agrees, undertakes, or otherwise assumes" the obligation to provide resident supervision at a teaching
hospital, and the patient with whom the doctor had no direct or indirect contract.

Standard of Care and Breach of Duty

A determination of whether or not the petitioning doctors met the required standard of care involves a question of mixed
fact and law; it is factual as medical negligence cases are highly technical in nature, requiring the presentation of expert
witnesses to provide guidance to the court on matters clearly falling within the domain of medical science, and legal,
insofar as the Court, after evaluating the expert testimonies, and guided by medical literature, learned treatises, and its
fund of common knowledge, ultimately determines whether breach of duty took place.

Whether or not Dr. Casumpang and Dr. Miranda committed a breach of duty is to be measured by the yardstick of
professional standards observed by the other members of the medical profession in good standing under similar
circumstances.49 It is in this aspect of medical malpractice that expert testimony is essential to establish not only the
professional standards observed in the medical community, but also that the physician's conduct in the treatment of care
falls below such standard.50

In the present case, expert testimony is crucial in determining first, the standard medical examinations, tests, and
procedures that the attending physicians should have undertaken in the diagnosis and treatment of dengue fever;
and second, the dengue fever signs and symptoms that the attending physicians should have noticed and considered.

Both the RTC and the CA relied largely on Dr. Jaudian's expert testimony on dengue diagnosis and management to
support their finding that the petitioning doctors were guilty of breach of duty of care.

Dr. Jaudian testified that Edmer's rapid breathing, chest and stomach pain, fever, and the presence of blood in his saliva
are classic symptoms of dengue fever. According to him, if the patient was admitted for chest pain, abdominal pain, and
difficulty in breathing coupled with fever, dengue fever should definitely be considered;51 if the patient spits coffee
ground with the presence of blood, and the patient's platelet count drops to 47,000, it becomes a clear case of dengue
fever, and bronchopneumonia can be reasonably ruled out.52

Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen inhalation, analgesic, and fluid
infusion or dextrose.53 If the patient had twice vomited fresh blood and thrombocytopenia has already occurred, the
doctor should order blood transfusion, monitoring of the patient every 30 minutes, hemostatic to stop bleeding, and
oxygen if there is difficulty in breathing.54

We find that Dr. Casumpang, as Edmer's attending physician, did not act according to these standards and,
hence, was guilty of breach of duty. We do not find Dr. Miranda liable for the reasons discussed below.

Dr. Casumpang's Negligence

a. Negligence in the Diagnosis

At the trial, Dr. Casumpang declared that a doctor's impression regarding a patient's illness is 90% based on the
physical examination, the information given by the patient or the latter's parents, and the patient's medical history. 55 He
testified that he did not consider either dengue fever or dengue hemorrhagic fever because the patient's history showed
that Edmer had low breath and voluntary submission, and that he was up and about playing basketball. 56 He based his
diagnosis of bronchopneumonia on the following observations: "difficulty in breathing, clearing run nostril, harsh breath
sound, tight air, and sivilant sound."57

It will be recalled that during Dr. Casumpang's first and second visits to Edmer, he already had knowledge of Edmer's
laboratory test result (CBC), medical history, and symptoms (i.e., fever, rashes, rapid breathing, chest and stomach
pain, throat irritation, difficulty in breathing, and traces of blood in the sputum). However, these information did not
lead Dr. Casumpang to the possibility that Edmer could be suffering from either dengue fever, or dengue
hemorrhagic fever, as he clung to his diagnosis of broncho pneumonia. This means that given the symptoms
exhibited, Dr. Casumpang already ruled out the possibility of other diseases like dengue.

In other words, it was lost on Dr. Casumpang that the characteristic symptoms of dengue (as Dr. Jaudian testified)
are: patient's rapid breathing; chest and stomach pain; fever; and the presence of blood in his saliva. All these
manifestations were present and known to Dr. Casumpang at the time of his first and second visits to Edmer. While he
noted some of these symptoms in confirming bronchopneumonia, he did not seem to have considered the patient's
other manifestations in ruling out dengue fever or dengue hemorrhagic fever.58 To our mind, Dr. Casumpang selectively
appreciated some, and not all of the symptoms; worse, he casually ignored the pieces of information that could have
been material in detecting dengue fever. This is evident from the testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990

Q: Now, when Dr. Casumpang visited your son for the first time at 5:30 p.m., what did he do, if any?
A: He examined my son by using stethoscope and after that, he confirmed to me that my son was suffering from
broncho pneumonia.
Q: After he confirmed that your son was suffering broncho pneumonia, what did you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my son has no cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?

xxxx

A: And then, Dr. Casumpang answered "THAT'S THE USUAL BRONCHO PNEUMONIA, NO COLDS, NO
PHLEGM."
Q: How long did Dr. Casumpang stay in your son's room?
A: He stayed for a minute or 2.

xxxx

Q: Q: When Dr. Casumpang arrived at 9:00 o'clock a.m. on April 23, what did you tell him, if any?

xxxx

A: I told Dr. Casumpang... After examining my son using stethoscope and nothing more, I told Dr.
Casumpang about the traces of blood in my son's sputum and I told him what is all about and he has
throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of looking at the throat of my son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all these complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my son was almost moving because of rapid
breathing and he is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang when you told him that your son is experiencing a
rapid breathing?
A: No action. He just asked me if my son has an asthma but I said none.
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
A: More or less two (2) minutes then I followed him up to the door and I repeated about the fever of my son.
Q: What did he tell you, if any, regarding that information you gave him that your son had a fever?
A: He said, that is broncho pneumonia, It's only being active now. [Emphasis supplied]
We also find it strange why Dr. Casumpang did not even bother to check Edmer's throat despite knowing that as early
as 9:00 in the morning of April 23, 1988, Edmer had blood streaks in his sputum. Neither did Dr. Casumpang order
confirmatory tests to confirm the source of bleeding. The Physician's Progress Notes 59 stated: "Blood streaks on
phlegm can be due to bronchial irritation or congestion" which clearly showed that Dr. Casumpang merely assumed,
without confirmatory physical examination, that bronchopneumonia caused the bleeding.
Dr. Jaudian likewise opined that Dr. Casumpang's medical examination was not comprehensive enough to reasonably
lead to a correct diagnosis.60 Dr. Casumpang only used a stethoscope in coming up with the diagnosis that Edmer was
suffering from bronchopneumonia; he never confirmed this finding with the use of a bronchoscope. Furthermore, Dr.
Casumpang based his diagnosis largely on the chest x-ray result that is generally inconclusive.61

Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after Edmer's third episode of bleeding) that
Dr. Casumpang ordered the conduct of hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests.
These tests came too late, as proven by: (1) the blood test results that came at about 6:00 in the evening, confirming
that Edmer's illness had developed to "Dengue Hemorrhagic Fever" and (2) Dr. Jaudian's testimony that "dengue fever
could have been detected earlier than 7:30 in the evening of April 23, 1988 because the symptoms were already
evident."62

In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit, the Court ruled that the petitioner
doctors were negligent because they failed to immediately order tests to confirm the patient's illness. Despite the
doctors' suspicion that the patient could be suffering from diabetes, the former still proceeded to the D&C operation. In
that case, expert testimony showed that tests should have been ordered immediately on admission to the hospital in
view of the symptoms presented. The Court held:
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.
The Court also ruled that reasonable prudence would have shown that diabetes and its complications were foreseeable
harm. However, the petitioner doctors failed to take this into consideration and proceeded with the D&C operation. Thus,
the Court ruled that they failed to comply with their duty to observe the standard of care to be given to
hyperglycemic/diabetic patients.

Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise reasonable prudence in ascertaining
the extent of the patient's injuries, this Court declared that:
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. [Emphasis supplied]
Even assuming that Edmer's symptoms completely coincided with the diagnosis of bronchopneumonia (so that this
diagnosis could not be considered "wrong"), we still find Dr. Casumpang guilty of negligence.

First, we emphasize that we do not decide the correctness of a doctor's diagnosis, or the accuracy of the
medical findings and treatment. Our duty in medical malpractice cases is to decide - based on the evidence adduced
and expert opinion presented - whether a breach of duty took place.

Second, we clarify that a wrong diagnosis is not by itself medical malpractice.65 Physicians are generally not liable
for damages resulting from a bona fide error of judgment. Nonetheless, when the physician's erroneous diagnosis was
the result of negligent conduct (e.g., neglect of medical history, failure to order the appropriate tests, failure to recognize
symptoms), it becomes an evidence of medical malpractice.

Third, we also note that medicine is not an exact science;66 and doctors, or even specialists, are not expected to give a
100% accurate diagnosis in treating patients who come to their clinic for consultations. Error is possible as the exercise
of judgment is called for in considering and reading the exhibited symptoms, the results of tests, and in arriving at
definitive conclusions. But in doing all these, the doctor must have acted according to acceptable medical practice
standards.

In the present case, evidence on record established that in confirming the diagnosis of bronchopneumonia, Dr.
Casumpang selectively appreciated some and not all of the symptoms presented, and failed to promptly conduct the
appropriate tests to confirm his findings. In sum, Dr. Casumpang failed to timely detect dengue fever, which
failure, especially when reasonable prudence would have shown that indications of dengue were evident and/or
foreseeable, constitutes negligence.
a. Negligence in the Treatment and Management of Dengue

Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to promptly undertake the proper
medical management needed for this disease.

As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited the classic symptoms of dengue
fever should have been: oxygen inhalation, use of analgesic, and infusion of fluids or dextrose;67 and once the patient
had twice vomited fresh blood, the doctor should have ordered: blood transfusion, monitoring of the patient every 30
minutes, hemostatic to stop bleeding, and oxygen if there is difficulty in breathing.68

Dr. Casumpang failed to measure up to these standards. The evidence strongly suggests that he ordered a transfusion
of platelet concentrate instead of blood transfusion. The tourniquet test was only conducted after Edmer's second
episode of bleeding, and the medical management (as reflected in the records) did not include antibiotic therapy and
complete physical examination.

Dr. Casumpang's testimony states:

Q: Now, after entertaining - After considering that the patient Edmer Cortero was already suffering from dengue
hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac rate and respiratory rate of the patient.
Q: Now, was your instructions carried on?
A: Yes, sir.
Q: What was the blood pressure of the patient?
A: During those times, the blood pressure of the patient was even normal during those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since admission had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [sic] the patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were ________; his blood pressure was normal so we continued
with the supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988,1 stayed in the hospital and I was informed by the pediatric resident on duty at
around 11:15 in the evening that the blood pressure of the patient went down to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we changed the IV fluid from the present fluid which
was D5 0.3 sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary to resume the volume and to bring back
the blood pressure, to increase the blood pressure. [Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr. Ellewelyn Pasion (Dr. Pasion),
Personnel Officer and Medical Director of SJDH, respectively as well as the testimonies of Dr. Livelo and Dr. Reyes (the
radiologist who read Edmer's chest x-ray result), these witnesses failed to dispute the standard of action that Dr.
Jaudian established in his expert opinion. We cannot consider them expert witnesses either for the sole reason that they
did not testify on the standard of care in dengue cases.69

On the whole, after examining the totality of the adduced evidence, we find that the lower courts correctly did not rely on
Dr. Casumpang's claim that he exercised prudence and due diligence in handling Edmer's case. Aside from being self-
serving, his claim is not supported by competent evidence. As the lower courts did, we rely on the uncontroverted fact
that he failed, as a medical professional, to observe the most prudent medical procedure under the circumstances in
diagnosing and treating Edmer.

Dr. Miranda is Not Liable for Negligence

In considering the case of Dr. Miranda, the junior resident physician who was on-duty at the time of Edmer's
confinement, we see the need to draw distinctions between the responsibilities and corresponding liability of Dr.
Casumpang, as the attending physician, and that of Dr. Miranda.

In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine licensed to practice in
the Philippines and who would like to pursue a particular specialty.70 They are usually the front line doctors responsible
for the first contact with the patient. During the scope of the residency program, 71 resident physicians (or
"residents")72 function under the supervision of attending physicians73or of the hospital's teaching staff. Under this
arrangement, residents operate merely as subordinates who usually defer to the attending physician on the decision to
be made and on the action to be taken.

The attending physician, on the other hand, is primarily responsible for managing the resident's exercise of duties. While
attending and resident physicians share the collective responsibility to deliver safe and appropriate care to the
patients,74 it is the attending physician who assumes the principal responsibility of patient care.75 Because he/she
exercises a supervisory role over the resident, and is ultimately responsible for the diagnosis and treatment of the
patient, the standards applicable to and the liability of the resident for medical malpractice is theoretically less than that
of the attending physician. These relative burdens and distinctions, however, do not translate to immunity from the legal
duty of care for residents,76 or from the responsibility arising from their own negligent act.

In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of care in medical malpractice cases
involving first-year residents was that of a reasonably prudent physician and not that of interns. According to Jenkins:
It is clear that the standard of care required of physicians is not an individualized one but of physicians in general in the
community. In order to establish medical malpractice, it must be shown by a preponderance of the evidence that a
physician did some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not
have done under like or similar conditions or circumstances, or that he failed or omitted to do some particular thing or
things that a physician or surgeon of ordinary skill, care and diligence would have done under like or similar conditions
or circumstances, and that the inquiry complained of was the direct result of such doing or failing to do such thing or
things.

We note that the standard of instruction given by the court was indeed a proper one. It clearly informed the jury that
the medical care required is that of reasonably careful physicians or hospital emergency room operators, not of
interns or residents. [Emphasis supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns and first-year residents are
"practitioners of medicine required to exercise the same standard of care applicable to physicians with unlimited
licenses to practice." The Indiana Court held that although a first-year resident practices under a temporary medical
permit, he/she impliedly contracts that he/she has the reasonable and ordinary qualifications of her profession and that
he/she will exercise reasonable skill, diligence, and care in treating the patient.

We find that Dr. Miranda was not independently negligent. Although she had greater patient exposure, and was'
subject to the same standard of care applicable to attending physicians, we believe that a finding of negligence should
also depend on several competing factors, among them, her authority to make her own diagnosis, the degree of
supervision of the attending physician over her, and the shared responsibility between her and the attending physicians.

In this case, before Dr. Miranda attended to Edmer, both Dr. Livelo and Dr. Casumpang had diagnosed Edmer with
bronchopneumonia. In her testimony, Dr. Miranda admitted that she had been briefed about Edmer's condition, his
medical history, and initial diagnosis;79 and based on these pieces of information, she confirmed the, finding of
bronchopneumonia.

Dr. Miranda likewise duly reported to Dr. Casumpang, who admitted receiving updates regarding Edmer's
condition.80 There is also evidence supporting Dr. Miranda's claim that she extended diligent care to Edmer. In fact,
when she suspected - during Edmer's second episode of bleeding - that Edmer could be suffering from dengue fever,
she wasted no time in conducting the necessary tests, and promptly notified Dr. Casumpang about the incident.
Indubitably, her medical assistance led to the finding of dengue fever.

We note however, that during Edmer's second episode of bleeding,81 Dr. Miranda failed to immediately examine and
note the cause of the blood specimen. Like Dr. Casumpang, she merely assumed that the blood in Edmer's phlegm was
caused by bronchopneumonia. Her testimony states:
TSN, June 8, 1993:

Q: Let us get this clear, you said that the father told you the patient cocked [sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen?
A: No, sir, I did not because according to the father he wash [sic] his hands.

xxxx

Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the lung alone.82 [Emphasis
supplied]

xxxx

TSN, June 17, 1993:

Q: Now, in the first meeting you had, when that was relayed to you by the father that Edmer Cortejo had coughed out
blood, what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a product of broncho pneumonia.

xxxx

Q: So what examination did you specifically conduct to see that there was no internal bleeding?
A: At that time I did not do anything to determine the cause of coughing of the blood because I
presumed that it was a mucous (sic) produced by broncho pneumonia, And besides the patient did not
even show any signs of any other illness at that time.[83
Based on her statements we find that Dr. Miranda was not entirely faultless. Nevertheless, her failure to discern the
import of Edmer's second bleeding does not necessarily amount to negligence as the respondent himself
admitted that Dr. Miranda failed to examine the blood specimen because he washed it away. In addition, considering the
diagnosis previously made by two doctors, and the uncontroverted fact that the burden of final diagnosis pertains to the
attending physician (in this case, Dr. Casumpang), we believe that Dr. Miranda's error was merely an honest mistake of
judgment influenced in no small measure by her status in the hospital hierarchy; hence, she should not be held liable for
medical negligence.

Dr. Jaudian 's Professional Competence and Credibility

One of the critical issues the petitioners raised in the proceedings before the lower court and before this Court was Dr.
Jaudian's competence and credibility as an expert witness. The petitioners tried to discredit his expert testimony on the
ground that he lacked the proper training and fellowship status in pediatrics.

Criteria in Qualifying as an Expert Witness

The competence of an expert witness is a matter for the trial court to decide upon in the exercise of its discretion. The
test of qualification is necessarily a relative one, depending upon the subject matter of the investigation, and the fitness
of the expert witness.84 In our jurisdiction, the criterion remains to be the expert witness' special knowledge
experience and practical training that qualify him/her to explain highly technical medical matters to the Court.

In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a pulmonologist, not qualified to testify on
the field of anesthesiology. Similarly, in Cereno v. Court of Appeals,86 a 2012 case involving medical negligence, the
Court excluded the testimony of an expert witness whose specialty was anesthesiology, and concluded that an
anesthesiologist cannot be considered an expert in the field of surgery or even in surgical practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician but a practicing physician
who specializes in pathology.87 He likewise does not possess any formal residency training in pediatrics. Nonetheless,
both the lower courts found his knowledge acquired through study and practical experience sufficient to advance an
expert opinion on dengue-related cases.

We agree with the lower courts.

A close scrutiny of Ramos and Cereno reveals that the Court primarily based the witnesses' disqualification to testify as
an expert on their incapacity to shed light on the standard of care that must be observed by the defendant-physicians.
That the expert witnesses' specialties do not match the physicians' practice area only constituted, at most, one of the
considerations that should not be taken out of context. After all, the sole function of a medical expert witness, regardless
of his/her specialty, is to afford assistance to the courts on medical matters, and to explain the medical facts in issue.

Furthermore, there was no reasonable indication in Ramos and Cereno that the expert witnesses possess a sufficient
familiarity with the standard of care applicable to the physicians' specialties.

US jurisprudence on medical malpractice demonstrated the trial courts' wide latitude of discretion in allowing a specialist
from another field to testify against a defendant specialist.

In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony regarding a gynecologist's standard
of pre-surgical care. In that case, the court held that since negligence was not predicated on the gynecologist's negligent
performance of the operation, but primarily on the claim that the pre-operative histories and physicals were inadequate,
the neurosurgeon was competent to testify as an expert.

Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a neurologist in a medical malpractice
action. The court considered that the orthopedic surgeon's opinion on the "immediate need for decompression" need not
come from a specialist in neurosurgery. The court held that:
It is well established that "the testimony of a qualified medical doctor cannot be excluded simply because he is not a
specialist x x x." The matter of "x x x training and specialization of the witness goes to the weight rather than
admissibility x x x."

xxxx

It did not appear to the court that a medical doctor had to be a specialist in neurosurgery to express the opinions
permitted to be expressed by plaintiffs' doctors, e.g., the immediate need for a decompression in the light of certain
neurological deficits in a post-laminectomy patient. As stated above, there was no issue as to the proper execution of
the neurosurgery. The medical testimony supported plaintiffs' theory of negligence and causation. (Citations omitted)
In another case,90 the court declared that it is the specialist's knowledge of the requisite subject matter, rather than
his/her specialty that determines his/her qualification to testify.

Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert witness:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional
knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on
the subject; and (2) is familiar with the standard required of a physician under similar circumstances; where a
witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the
degree of his knowledge goes more to the weight of the evidence than to its admissibility.

xxxx

Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of
the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care
applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on
education, experience, observation, or association wit that specialty, his opinion is competent. (Emphasis
supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness' familiarity, and not the classification by title or
specialty, which should control issues regarding the expert witness' qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a specialist in a particular branch within a
profession will not be required." Most courts allow a doctor to testify if they are satisfied of his familiarity with the
standards of a specialty, though he may not practice the specialty himself. One court explained that "it is the scope of
the witness' knowledge and not the artificial classification by title that should govern the threshold question of
admissibility. (Citations omitted)
Application to the Present Case

In the case and the facts before us, we find that Dr. Jaudian is competent to testify on the standard of care in dengue
fever cases.

Although he specializes in pathology, it was established during trial that he had attended not less than 30 seminars held
by the Pediatric Society, had exposure in pediatrics, had been practicing medicine for 16 years, and had handled not
less than 50 dengue related cases.

As a licensed medical practitioner specializing in pathology, who had practical and relevant exposure in pediatrics and
dengue related cases, we are convinced that Dr. Jaudian demonstrated sufficient familiarity with the standard of care to
be applied in dengue fever cases. Furthermore, we agree that he possesses knowledge and experience sufficient to
qualify him to speak with authority on the subject.

The Causation Between Dr. Casumpang's Negligent Act/Omission, and the Patient's Resulting Death was
Adequately Proven

Dr. Jaudian's testimony strongly suggests that due to Dr. Casumpang's failure to timely diagnose Edmer with dengue,
the latter was not immediately given the proper treatment. In fact, even after Dr. Casumpang had discovered Edmer's
real illness, he still failed to promptly perform the standard medical procedure. We agree with these findings.

As the respondent had pointed out, dengue fever, if left untreated, could be a life threatening disease. As in any fatal
diseases, it requires immediate medical attention.93 With the correct and timely diagnosis, coupled with the proper
medical management, dengue fever is not a life-threatening disease and could easily be cured.94

Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate of dengue fever should fall to less
than 2%. Hence, the survival of the patient is directly related to early and proper management of the illness. 95

To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever despite the presence of its
characteristic symptoms; and as a consequence of the delayed diagnosis, he also failed to promptly manage Edmer's
illness. Had he immediately conducted confirmatory tests, (i.e., tourniquet tests and series of blood tests) and promptly
administered the proper care and management needed for dengue fever, the risk of complications or even death, could
have been substantially reduced.

Furthermore, medical literature on dengue shows that early diagnosis and management of dengue is critical in reducing
the risk of complications and avoiding further spread of the virus.96 That Edmer later died of "Hypovolemic
Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever Stage IV," a severe and fatal form of dengue fever,
established the causal link between Dr. Casumpang's negligence and the injury.

Based on these considerations, we rule that the respondent successfully proved the element of causation.

Liability of SJDH

We now discuss the liability of the hospital.

The respondent submits that SJDH should not only be held vicariously liable for the petitioning doctors' negligence but
also for its own negligence. He claims that SJDH fell short of its duty of providing its patients with the necessary facilities
and equipment as shown by the following circumstances:
(a) SJDH was not equipped with proper paging system;

(b) the number of its doctors is not proportionate to the number of patients;

(c) SJDH was not equipped with a bronchoscope;

(d) when Edmer's oxygen was removed, the medical staff did not immediately provide him with portable oxygen;

(e) when Edmer was about to be transferred to another hospital, SJDH's was not ready and had no driver; and

(f) despite Edmer's critical condition, there was no doctor attending to him from 5:30 p.m. of April 22, to 9:00 a.m. of
April 23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning doctors are not its employees but are mere
consultants and independent contractors.

We affirm the hospital's liability not on the basis of Article 2180 of the Civil Code, but on the basis of the doctrine of
apparent authority or agency by estoppel.

There is No Employer-Employee Relationship Between SJDH and the Petitioning Doctors

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.97

Control, which is the most crucial among the elements, is not present in this case.

Based on the records, no evidence exists showing that SJDH exercised any degree of control over the means, methods
of procedure and manner by which the petitioning doctors conducted and performed their medical profession. SJDH did
not control their diagnosis and treatment. Likewise, no evidence was presented to show that SJDH monitored,
supervised, or directed the petitioning doctors in the treatment and management of Edmer's case. In these lights, the
petitioning doctors were not employees of SJDH, but were mere independent contractors.

SJDH is Solidarity Liable Based on The Principle of Agency or Doctrine of Apparent Authority

Despite the absence of employer-employee relationship between SJDH and the petitioning doctors, SJDH is not free
from liability.98

As a rule, hospitals are not liable for the negligence of its independent contractors. However, it may be found liable if the
physician or independent contractor acts as an ostensible agent of the hospital. This exception is also known as the
"doctrine of apparent authority."99

The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the hospitals' immunity to vicarious liability of
independent contractor physicians. In that case, the Illinois Supreme Court held that under the doctrine of apparent
authority, hospitals could be found vicariously liable for the negligence of an independent contractor:
Therefore, we hold that, under 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. (Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court, through the ponenciaof Associate
Justice Antonio T. Carpio, discussed the two factors in determining hospital liability as follows:
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. 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.

xxxx

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. (Citation
omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or an independent contractor)
providing care at the hospital if the plaintiff can prove these two factors: first, the hospital's manifestations;
and second, the patient's reliance.

a. Hospital's manifestations

It involves an inquiry on whether the hospital acted in a manner that would lead a reasonable person to conclude that
the individual alleged to be negligent was an employee or agent of the hospital. As pointed out in Nogales, the hospital
need not make express representations to the patient that the physician or independent contractor is an employee of the
hospital; representation may be general and implied.102

In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by the hospital or its agent are
sufficient to lead a reasonable person to conclude that the individual was an agent of the hospital." In ruling that the
hospital's manifestations can be proven without the express representation by the hospital, the court relied on several
cases from other jurisdictions, and held that:
(1) the hospital, by providing emergency room care and by failing to advise patients that they were being treated by
the hospital's agent and not its employee, has created the appearance of agency; and

(2) patients entering the hospital through the emergency room, could properly assume that the treating doctors and
staff of the hospital were acting on its behalf.
In this case, the court considered the act of the hospital of holding itself out as provider of complete medical care, and
considered the hospital to have impliedly created the appearance of authority.

b. Patient's reliance

It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the hospital or its agent, consistent with
ordinary care and prudence.104

In Pamperin, the court held that the important consideration in determining the patient's reliance is: whether the plaintiff
is seeking care from the hospital itself or whether the plaintiff is looking to the hospital merely as a place for his/her
personal physician to provide medical care.105

Thus, this requirement is deemed satisfied if the plaintiff can prove that he/she relied upon the hospital to provide care
and treatment, rather than upon a specific physician. In this case, we shall limit the determination of the hospital's
apparent authority to Dr. Casumpang, in view of our finding that Dr. Miranda is not liable for negligence.

SJDH Clothed Dr. Casumpang With Apparent Authority

SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading the respondent to believe that he
is an employee or agent of the hospital.

Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang, to care and treat his son
Edmer. His testimony during trial showed that he and his wife did not know any doctors at SJDH; they also did not
know that Dr. Casumpang was an independent contractor. They brought their son to SJDH for diagnosis because of
their family doctor's referral. The referral did not specifically point to Dr. Casumpang or even to Dr. Miranda, but to
SJDH.

Significantly, the respondent had relied on SJDH's representation of Dr. Casumpang's authority. To recall, when Mrs.
Cortejo presented her Fortune Care card, she was initially referred to the Fortune Care coordinator, who was then out of
town. She was thereafter referred to Dr. Casumpang, who is also accredited with Fortune Care. In both instances, SJDH
through its agent failed to advise Mrs. Cortejo that Dr. Casumpang is an independent contractor.

Mrs. Cortejo accepted Dr. Casumpang's services on the reasonable belief that such were being provided by SJDH or its
employees, agents, or servants. By referring Dr. Casumpang to care and treat for Edmer, SJDH impliedly held out
Dr. Casumpang, not only as an accredited member of Fortune Care, but also as a member of its medical staff.
SJDH cannot now disclaim liability since there is no showing that Mrs. Cortejo or the respondent knew, or should have
known, that Dr. Casumpang is only an independent contractor of the hospital. In this case, estoppel has already set in.

We also stress that Mrs. Cortejo's use of health care plan (Fortune Care) did not affect SJDH's liability. The only effect
of the availment of her Fortune Care card benefits is that her choice of physician is limited only to physicians who are
accredited with Fortune Care. Thus, her use of health care plan in this case only limited the choice of doctors (or
coverage of services, amount etc.) and not the liability of doctors or the hospital.

WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions. The Court finds Dr. Noel
Casumpang and San Juan de Dios Hospital solidarity liable for negligent medical practice. We SET ASIDE the finding of
liability as to Dr. Ruby Sanga-Miranda. The amounts of P45,000.00 as actual damages and P500,000.00 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 AFFIRMSthe rest of the Decision dated October 29, 2004 and the Resolution
dated January 12, 2006 in CA-G.R. CV No. 56400.

SO ORDERED.

DR. JAIME T. CRUZ, Petitioner, v. FELICISIMO V. AGAS, JR., Respondent.

DECISION

MENDOZA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court assails the May 22, 2012 Decision1 and October
18, 2012 Resolution2 of the Court of Appeals (CA), in CA-G.R. SP No. 111910, which affirmed the March 2, 20073 and
September 23, 20094 Resolutions of the Secretary of Justice. The said resolutions let stand the February 16, 2004
Resolution of the Office of the Prosecutor of Quezon City, dismissing the complaint of petitioner Dr. Jaime T. Cruz (Dr.
Cruz) for Serious Physical Injuries through Reckless Imprudence and Medical Malpractice against respondent, Dr.
Felicisimo V. Agas, Jr. (Dr. Agas).

The Antecedents

In his Complaint-Affidavit5 for Serious Physical Injuries through Reckless Imprudence and Medical Malpractice against
Dr. Agas, Dr. Cruz alleged, among others, that sometime in May 2003, he engaged the services of St. Luke's Medical
Center (SLMC) for a medical check-up; that after being admitted in SLMC on May 28, 2003, he underwent stool, urine,
blood, and other body fluid tests conducted by the employees and doctors of the said hospital; that on May 29, 2003, he
was sent to the Gastro-Enterology Department for a scheduled gastroscopy and colonoscopy; that because the
specialist assigned to perform the procedure was nowhere to be found, he gave the colonoscopy results to the attending
female anesthesiologist for the information and consideration of the assigned specialist; that, thereafter, he was sedated
and the endoscopic examination was carried out; that when he regained consciousness, he felt that something went
wrong during the procedure because he felt dizzy, had cold clammy perspiration and experienced breathing difficulty;
that he could not stand or sit upright because he felt so exhausted and so much pain in his abdomen; that when he was
about to urinate in the comfort room, he collapsed; that he tried to consult the specialist who performed the colonoscopy
but he was nowhere to be found; and that his cardiologist, Dra. Agnes Del Rosario, was able to observe his critical
condition and immediately referred him to the surgical department which suspected that he had hemorrhage in his
abdomen and advised him to undergo an emergency surgical operation.

Dr. Cruz further averred that he agreed to the operation and upon waking up at the ICU on May 30, 2003, he found out
that the doctors did an exploratory laparatomy because of the internal bleeding; that he learned that the doctors cut a
portion of the left side of his colon measuring 6-8 inches because it had a partial tear of the colonic wall which caused
the internal bleeding; that despite the painkillers, he was under tremendous pain in the incision area during his recovery
period in the ICU and had fever; and that he had intravenous tubes attached to his arms, subclavian artery on the left
part of his chest and a nasogastric tube through his nose.

Dr. Cruz claimed that Dr. Agas admitted that he was the one who performed the colonoscopy procedure but the latter
insisted that nothing went wrong. On June 7, 2003, he was discharged from SLMC. Nevertheless, he complained that
he had a hard time digesting his food; that he was frequently fed every two hours because he easily got full; that he had
fresh blood stools every time he moved his bowel; that he had lost his appetite and had gastric acidity; that he slept
most of the day; and that he was in good physical condition before the colonoscopy procedure. He asserted that at the
time of the filing of the complaint, he was still weak, tired and in pain.

Defense of Dr. Agas

Dr. Agas, on the other hand, countered that Dr. Cruz failed to prove the basic elements of reckless imprudence or
negligence. He averred that Dr. Cruz unfairly made it appear that he did not know that he would perform the procedure.
He explained that before the start of the colonoscopy procedure, he was able to confer with Dr. Cruz and review his
medical history which was taken earlier by a fellow gastrointestinal physician. He claimed that the gastroscopy and
colonoscopy procedures conducted on Dr. Cruz were completely successful considering that the latter did not manifest
any significant adverse reaction or body resistance during the procedures and that his vital signs were normal
throughout the procedure.6chanrobleslaw

Dr. Agas added that certifications and sworn statements were submitted by the Assistant Medical Director for
Professional Services, the Director of the Institute of Digestive Diseases, the anesthesiologist, and the hospital nurse
attesting to the fact that the intraperitonial bleeding which developed after the colonoscopy procedure, was immediately
recognized, evaluated, carefully managed, and corrected; that he provided an adequate and reasonable standard of
care to Dr. Cruz; that the endoscopist followed all precautionary measures; that the colonoscopy procedure was done
properly; that he was not negligent or reckless in conducting the colonoscopy procedure; that he did not deviate from
any standard medical norm, practice or procedure; and that he exercised competence and diligence in rendering
medical services to Dr. Cruz.7chanrobleslaw

Antecedents at the Prosecution Level

On February 16, 2004, the Office of the City Prosecutor (OCP) issued a resolution dismissing the complaint for Serious
Physical Injuries through Reckless Imprudence and Medical Malpractice. Aggrieved, Dr. Cruz filed a petition for review
with the Department of Justice (DOJ) but the same was dismissed in its March 2, 2007 Resolution. Dr. Cruz filed a
motion for reconsideration but it was denied by the DOJ in its September 23, 2009 Resolution. 8chanrobleslaw

At the Court of Appeals

Not satisfied, Dr. Cruz filed a petition for certiorari before the CA questioning the unfavorable DOJ resolutions. On May
22, 2012, the CA rendered a decision affirming the said DOJ resolutions. The CA explained that, as a matter of sound
judicial policy, courts would not interfere with the public prosecutor's wide discretion of determining probable cause in a
preliminary investigation unless such executive determination was tainted with manifest error or grave abuse of
discretion. It stated that the public prosecutor's finding of lack of probable cause against Dr. Agas was in accordance
with law and that his alleged negligence was not adequately established by Dr. Cruz.
The CA also declared that Dr. Cruz failed to state in his Complaint-Affidavit the specific procedures that Dr. Agas failed
to do which a reasonable prudent doctor would have done, or specific norms he failed to observe which a reasonably
prudent doctor would have complied with. The CA pointed out that Dr. Agas was able to satisfactorily explain in his
Counter-Affidavit that the complications suffered by Dr. Cruz was not caused by his negligence or was the result of
medical malpractice. Dr. Agas explained as follows:chanRoblesvirtualLawlibrary
That the complication was due to the abnormal condition and configuration of the digestive system, colon in particular,
of the complainant and not from any negligent act in connection with the conduct of colonoscopy. The surgical findings
(xxx) revealed marked adhesions in the sigmoid colon which is not and never within my control. That the tear in the
serosa (the outermost layer of the colonic wall which has 4 layers) happened likely because of the marked interloop
adhesions and tortuousity of the sigmoid segment of the colon. These adhesions that connect the serosa to the
peritoneal lining of each loop detached from the serosa during the procedure. It is not possible to detect the presence of
marked adhesions prior to the endoscopic procedure because no clinical findings, laboratory tests or diagnostic imaging
such as x-ray, ultrasound or computed tomography (CT scan) of the abdomen can diagnose these conditions. This can
only be detected by surgically opening up the abdomen. Moreover, marked adhesions and serosal tear, in particular,
cannot likewise be detected by colonoscopy because they are in the outer wall of the colon and only the inner lining of
the colon is within the view of the colonoscope (camera).9
The CA further wrote that the counter-affidavit of Dr. Agas was supported by the sworn affidavit of Dr. Jennifel S.
Bustos, an anesthesiologist at the SLMC and the affidavit of Evelyn E. Daulat, a nurse at SLMC, both swearing under
oath that Dr. Agas was not negligent in conducting a gastroscopy and colonoscopy procedure on Dr. Cruz and the
certification issued by the Hospital Ethics Committee which stated that Dr. Cruz was given an adequate and reasonable
standard of care; that Dr. Agas followed all precautionary measures in safeguarding Dr. Cruz from any possible
complications; and that the colonoscopy was done properly.

Hence, this petition.

ISSUE

WHETHER OR NOT THE CA WAS CORRECT IN AFFIRMING THE DECISION OF THE DOJ THAT NO PROBABLE
CAUSE EXISTS FOR FILING AN INFORMATION AGAINST THE RESPONDENT, THAT THE RESPONDENT WAS
NOT NEGLIGENT AND THAT THERE WAS NO DENIAL OF DUE PROCESS.
Non-interference with Executive Determination of Probable Cause in Preliminary Investigations

Under the doctrine of separation of powers, courts have no right to directly decide on matters over which full
discretionary authority has been delegated to the Executive Branch of the Government, or to substitute their own
judgment for that of the Executive Branch, represented in this case by the Department of Justice. The settled policy is
that the courts will not interfere with the executive determination of probable cause for the purpose of filing an
Information, in the absence of grave abuse of discretion. That abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in
contemplation of law, such as where the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility.

Medical Negligence and Malpractice Not Established

In the case at bench, Dr. Cruz failed to show that the DOJ gravely abused its discretion in finding that there was lack of
probable cause and dismissing the complaint against Dr. Agas for Serious Physical Injuries through Reckless
Imprudence and Medical Malpractice.

A medical negligence case can prosper if the patient can present solid proof that the doctor, like in this case, either
failed to do something which a reasonably prudent doctor would have done, or that he did something that a reasonably
prudent doctor would not have done, and such failure or action caused injury to the patient.
To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do
something which a reasonably prudent health care provider would have done, or that he did something that a
reasonably prudent provider would not have done; and that failure or action caused injury to the patient. Simply put, the
elements are duty, breach, injury and proximate causation.10
In this case, Dr. Cruz has the burden of showing the negligence or recklessness of Dr. Agas. Although there is no
dispute that Dr. Cruz sustained internal hemorrhage due to a tear in the serosa of his sigmoid colon, he failed to show
that it was caused by Dr. Agas's negligent and reckless conduct of the colonoscopy procedure. In other words, Dr. Cruz
failed to show and explain that particular negligent or reckless act or omission committed by Dr. Agas. Stated differently,
Dr. Cruz did not demonstrate that there was "inexcusable lack of precaution" on the part of Dr. Agas.

Res Ipsa Loquitur Doctrine

Not Applicable Against Respondent

Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation.11chanrobleslaw

The requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing
which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in
the ordinary course of things, would not have happened if those who had control or management used proper care; and
(4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the control and
management of the thing which caused the injury.12chanrobleslaw

In this case, the Court agrees with Dr. Agas that his purported negligence in performing the colonoscopy on Dr. Cruz
was not immediately apparent to a layman to justify the application of res ipsa loquiturdoctrine.

Dr. Agas was able to establish that the internal bleeding sustained by Dr. Cruz was due to the abnormal condition and
configuration of his sigmoid colon which was beyond his control considering that the said condition could not be
detected before a colonoscopic procedure. Dr. Agas adequately explained that no clinical findings, laboratory tests, or
diagnostic imaging, such as x-rays, ultrasound or computed tomography (CT) scan of the abdomen, could have
detected this condition prior to an endoscopic procedure. Specifically, Dr. Agas wrote:chanRoblesvirtualLawlibrary
On the other hand, in the present case, the correlation between petitioner's injury, i.e., tear in the serosa of sigmoid
colon, and the colonoscopy conducted by respondent to the petitioner clearly requires the presentation of an expert
opinion considering that no perforation of the sigmoid colon was ever noted during the laparotomy. It cannot be
overemphasized that the colonoscope inserted by the respondent only passed through the inside of petitioner's sigmoid
colon while the damaged tissue, i.e., serosa, which caused the bleeding, is located in the outermost layer of the colon. It
is therefore impossible for the colonoscope to touch, scratch, or even tear the serosa since the said membrane is
beyond reach of the colonoscope in the absence of perforation on the colon.13
Dr. Cruz failed to rebut this.

WHEREFORE, the petition is DENIED.

Carpio, (Chairperson), Brion, Del Castillo, and Jardeleza,*JJ., concur.

G.R. No. 191018, January 25, 2016

CARLOS BORROMEO, Petitioner, v. FAMILY CARE HOSPITAL, INC. AND RAMON S. INSO, M.D., Respondents.

DECISION

BRION, J.:

Carlos Borromeo lost his wife Lillian when she died after undergoing a routine appendectomy. The hospital and the
attending surgeon submit that Lillian bled to death due to a rare, life-threatening condition that prevented her blood from
clotting normally. Carlos believes, however, that the hospital and the surgeon were simply negligent in the care of his
late wife.

On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No. 890961 dismissed Carlos' complaint and thus
reversed the April 10, 2007 decision of the Regional Trial Court (RTC) in Civil Case No. 2000-603-MK2 which found the
respondents liable for medical negligence.

The present petition for review on certiorari seeks to reverse the CA's January 22, 2010 decision.

ANTECEDENTS

The petitioner, Carlos Borromeo, was the husband of the late Lilian V. Borromeo (Lilian). Lilian was a patient of the
respondent Family Care Hospital, Inc. (Family Care) under the care of respondent Dr. Ramon Inso (Dr. Inso).

On July 13, 1999, the petitioner brought his wife to the Family Care Hospital because she had been complaining of
acute pain at the lower stomach area and fever for two days. She was admitted at the hospital and placed under the
care of Dr. Inso.

Dr. Inso suspected that Lilian might be suffering from acute appendicitis. However, there was insufficient data to rule out
other possible causes and to proceed with an appendectomy. Thus, he ordered Lilian's confinement for testing and
evaluation.

Over the next 48 hours, Lilian underwent multiple tests such as complete blood count, urinalysis, stool exam, pelvic
ultrasound, and a pregnancy test. However, the tests were not conclusive enough to confirm that she had appendicitis.

Meanwhile, Lilian's condition did not improve. She suffered from spiking fever and her abdominal pain worsened. The
increasing tenderness of her stomach, which was previously confined to her lower right side, had also extended to her
lower left side. Lilian abruptly developed an acute surgical abdomen.

On July 15, 1999, Dr. Inso decided to conduct an exploratory laparotomy on Lilian because of the findings on her
abdomen and his fear that she might have a ruptured appendix. Exploratory laparotomy is a surgical procedure
involving a large incision on the abdominal wall that would enable Dr. Inso to examine the abdominal cavity and identify
the cause of Lilian's symptoms. After explaining the situation, Dr. Inso obtained the patient's consent to the laparotomy.

At around 3:45 P.M., Lilian was brought to the operating room where Dr. Inso conducted the surgery. During the
operation, Dr. Inso confirmed that Lilian was suffering from acute appendicitis. He proceeded to remove her appendix
which was already infected and congested with pus.

The operation was successful. Lilian's appearance and vital signs improved. At around 7:30 P.M., Lilian was brought
back to her private room from the recovery room.

At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian was brought back to her room, Dr. Inso was
informed that her blood pressure was low. After assessing her condition, he ordered the infusion of more intravenous
(IV) fluids which somehow raised her blood pressure.

Despite the late hour, Dr. Inso remained in the hospital to monitor Lilian's condition. Subsequently, a nurse informed him
that Lilian was becoming restless. Dr. Inso immediately went to Lilian and saw that she was quite pale. He immediately
requested a blood transfusion.

Lilian did not respond to the blood transfusion even after receiving two 500 cc-units of blood. Various drugs, such as
adrenaline or epinephrine, were administered.

Eventually, an endotracheal tube connected to an oxygen tank was inserted into Lilian to ensure her airway was clear
and to compensate for the lack of circulating oxygen in her body from the loss of red blood cells. Nevertheless, her
condition continued to deteriorate.

Dr. Inso observed that Lilian was developing petechiae in various parts of her body. Petechiae are small bruises caused
by bleeding under the skin whose presence indicates a blood-coagulation problem - a defect in the ability of blood to
clot. At this point, Dr. Inso suspected that Lilian had Disseminated Intravascular Coagulation (DIC), a blood disorder
characterized by bleeding in many parts of her body caused by the consumption or the loss of the clotting factors in the
blood. However, Dr. Inso did not have the luxury to conduct further tests because the immediate need was to
resuscitate Lilian.

Dr. Inso and the nurses performed cardiopulmonary resuscitation (CPR) on Lilian. Dr. Inso also informed her family that
there may be a need to re-operate on her, but she would have to be put in an Intensive Care Unit (ICU). Unfortunately,
Family Care did not have an ICU because it was only a secondary hospital and was not required by the Department of
Health to have one. Dr. Inso informed the petitioner that Lilian would have to be transferred to another hospital.

At around 3:30 A.M., Dr. Inso personally called the Perpetual Help Medical Center to arrange Lilian's transfer, but the
latter had no available bed in its ICU. Dr. Inso then personally coordinated with the Muntinlupa Medical Center (MMC)
which had an available bed.

At around 4:00 A.M., Lilian was taken to the MMC by ambulance accompanied by the resident doctor on duty and a
nurse. Dr. Inso followed closely behind in his own vehicle.

Upon reaching the MMC, a medical team was on hand to resuscitate Lilian. A nasogastric tube (NGT) was inserted and
IV fluids were immediately administered to her. Dr. Inso asked for a plasma expander. Unfortunately, at around 10:00
A.M., Lilian passed away despite efforts to resuscitate her.

At the request of the petitioner, Lilian's body was autopsied at the Philippine National Police (PNP) Camp Crame Crime
Laboratory. Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the laboratory, conducted the autopsy. Dr.
Reyes summarized his notable findings as:
x x x I opened up the body and inside the abdominal cavity which you call peritoneal cavity there were 3,000 ml of clot
and unclot blood accumulated thereat. The peritoneal cavity was also free from any adhesion. Then, I opened up the
head and the brain revealed paper white in color and the heart revealed abundant petechial hemorrhages from the
surface and it was normal. The valvular leaflets were soft and pliable, and of course, the normal color is reddish brown
as noted. And the coronary arteries which supply the heart were normal and unremarkable. Next, the lungs appears [sic]
hemorrhagic. That was the right lung while the left lung was collapsed and paled. For the intestines, I noted throughout
the entire lengths of the small and large intestine were hemorrhagic areas. Noted absent is the appendix at the ileo-colic
area but there were continuous suture repair done thereat. However, there was a 0.5 x 0.5 cm opening or left
unrepaired at that time. There was an opening on that repair site. Meaning it was not repaired. There were also at that
time clot and unclot blood found adherent thereon. The liver and the rest of the visceral organs were noted exhibit [sic]
some degree of pallor but were otherwise normal. The stomach contains one glassful about 400 to 500
ml.3ChanRoblesVirtualawlibrary
Dr. Reyes concluded that the cause of Lilian's death was hemorrhage due to bleeding petechial blood vessels: internal
bleeding. He further concluded that the internal bleeding was caused by the 0.5 x 0.5 cm opening in the repair site. He
opined that the bleeding could have been avoided if the site was repaired with double suturing instead of the single
continuous suture repair that he found.

Based on the autopsy, the petitioner filed a complaint for damages against Family Care and against Dr. Inso for medical
negligence.

During the trial, the petitioner presented Dr. Reyes as his expert witness. Dr. Reyes testified as to his findings during the
autopsy and his opinion that Lilian's death could have been avoided if Dr. Inso had repaired the site with double suture
rather than a single suture.

However, Dr. Reyes admitted that he had very little experience in the field of pathology and his only experience was an
on-the-job training at the V. Luna Hospital where he was only on observer status. He further admitted that he had no
experience in appendicitis or appendectomy and that Lilian's case was his first autopsy involving a death from
appendectomy.

Moreover, Dr. Reyes admitted that he was not intelligently guided during the autopsy because he was not furnished with
clinical, physical, gross, histopath, and laboratory information that were important for an accurate conclusion. Dr. Reyes
also admitted that an appendical stump is initially swollen when sutured and that the stitches may loosen during the
healing process when the initial swelling subside.
In their defense, Dr. Inso and Family Care presented Dr. Inso, and expert witnesses Dr. Celso Ramos (Dr. Ramos) and
Dr. Herminio Hernandez (Dr. Hernandez).

Dr. Ramos is a practicing pathologist with over 20 years of experience. He is an associate professor at the Department
of Surgery of the Fatima Medical Center, the Manila Central University, and the Perpetual Help Medical Center. He is a
Fellow of the Philippine College of Surgeons, a Diplomate of the Philippine Board of Surgery, and a Fellow of the
Philippine Society of General Surgeons.

Dr. Ramos discredited Dr. Reyes' theory that the 0.5 x 0.5 cm opening at the repair site caused Lilian's internal
bleeding. According to Dr. Ramos, appendical vessels measure only 0.1 to 0.15 cm, a claim that was not refuted by the
petitioner. If the 0.5 x 0.5 cm opening had caused Lilian's hemorrhage, she would not have survived for over 16 hours;
she would have died immediately, within 20 to 30 minutes, after surgery.

Dr. Ramos submitted that the cause of Lilian's death was hemorrhage due to DIC, a blood disorder that leads to the
failure of the blood to coagulate; Dr. Ramos considered the abundant petechial hemorrhage in the myocardic sections
and the hemorrhagic right lung; the multiple bleeding points indicate that Lilian was afflicted with DIC.

Meanwhile, Dr. Hernandez is a general surgeon and a hospital administrator who had been practicing surgery for twenty
years as of the date of his testimony.

Dr. Hernandez testified that Lilian's death could not be attributed to the alleged wrong suturing. He submitted that the
presence of blood in the lungs, in the stomach, and in the entire length of the bowels cannot be reconciled with Dr.
Reyes' theory that the hemorrhage resulted from a single-sutured appendix.

Dr., Hernandez testified that Lilian had uncontrollable bleeding in the microcirculation as a result of DIC. In DIC, blood
oozes from very small blood vessels because of a problem in the clotting factors of the blood vessels. The
microcirculation is too small to be seen by the naked eye; the red cell is even smaller than the tip of a needle. Therefore,
the alleged wrong suturing could not have caused the amount of hemorrhaging that caused Lilian's death.

Dr. Hernandez further testified that the procedure that Dr. Inso performed was consistent with the usual surgical
procedure and he would not have done anything differently.4

The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a rebuttal witness. Dr. Avila, also a lawyer, was presented
as an expert in medical jurisprudence. Dr. Avila testified that between Dr. Reyes who autopsied the patient and Dr.
Ramos whose findings were based on medical records, greater weight should be given to Dr. Reyes' testimony.

On April 10, 2007, the RTC rendered its decision awarding the petitioner P88,077.50 as compensatory damages;
P50,000.00 as death indemnity; P3,607,910.30 as loss of earnings; P50,000.00 as moral damages; P30,000.00 as
exemplary damages; P50,000.00 as attorney's fees, and the costs of the suit.

The RTC relied on Dr. Avila's opinion and gave more weight to Dr. Reyes' findings regarding the cause of Lilian's death.
It held that Dr. Inso was negligent in using a single suture on the repair site causing Lilian's death by internal
hemorrhage. It applied the doctrine of res ipsa loquitur, holding that a patient's death does not ordinarily occur during an
appendectomy.

The respondents elevated the case to the CA and the appeal was docketed as CA-G.R. CV No. 89096.

On January 22, 2010, the CA reversed the RTC's decision and dismissed the complaint. The CA gave greater weight to
the testimonies of Dr. Hernandez and Dr. Ramos over the findings of Dr. Reyes because the latter was not an expert in
pathology, appendectomy, nor in surgery. It disregarded Dr. Avila's opinion because the basic premise of his testimony
was that the doctor who conducted the autopsy is a pathologist of equal or of greater expertise than Dr. Ramos or Dr.
Hernandez.

The CA held that there was no causal connection between the alleged omission of Dr. Inso to use a double suture and
the cause of Lilian's death. It also found that Dr. Inso did, in fact, use a double suture ligation with a third silk
reinforcement ligation on the repair site which, as Dr. Reyes admitted on cross-examination, loosened up after the initial
swelling of the stump subsided.

The CA denied the applicability of the doctrine of res ipsa loquitur because the element of causation between the
instrumentality under the control and management of Dr. Inso and the injury that caused Lilian's death was absent; the
respondents sufficiently established that the cause of Lilian's death was DIC.

On March 18, 2010, the petitioner filed the present petition for review on certiorari.

THE PETITION

The petitioner argues: (1) that Dr. Inso and Family Care were negligent in caring for Lilian before, during, and after her
appendectomy and were responsible for her death; and (2) that the doctrine of res ipsa loquitur is applicable to this
case.

In their Comment, the respondents counter: (1) that the issues raised by the petitioner are not pure questions of law; (2)
that they exercised utmost care and diligence in the treatment of Lilian; (3) that Dr. Inso did not deviate from the
standard of care observed under similar circumstances by other members of the profession in good standing; (4)
that res ipsa loquitur is not applicable because direct evidence as to the cause of Lilian's death and the
presence/absence of negligence is available; and (5) that doctors are not guarantors of care and cannot be held liable
for the death of their patients when they exercised diligence and did everything to save the patient.

OUR RULING

The petition involves factual questions.

Under Section 1 of Rule 45, a petition for review on certiorari shall only raise questions of law. The Supreme Court is not
a trier of facts and it is not our function to analyze and weigh evidence that the lower courts had already passed upon.

The factual findings of the Court of Appeals are, as a general rule, conclusive upon this Court. However, jurisprudence
has also carved out recognized exceptions5 to this rule, to wit: (1) when the findings are grounded entirely on
speculation, surmises, or conjectures;6 (2) when the inference made is manifestly mistaken, absurd, or impossible;7 (3)
when there is grave abuse of discretion;8 (4) when the judgment is based on a misapprehension of facts; 9 (5) when the
findings of facts are conflicting;10 (6) when in making its findings the Court of Appeals went beyond the issues of the
case, or its findings are contrary to the admissions of both the appellant and the appellee;11(7) when the findings are
contrary to those of the trial court's;12 (8) when the findings are conclusions without citation of specific evidence on
which they are based;13 (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are
not disputed by the respondent;14 (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record;15 and (11) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered, would justify a different conclusion. 16

Considering that the CA's findings with respect to the cause of Lilian's death contradict those of the RTC, this case falls
under one of the exceptions. The Court will thus give due course to the petition to dispel any perception that we denied
the petitioner justice.

The requisites of establishing medical malpractice

Whoever alleges a fact has the burden of proving it. This is a basic legal principle that equally applies to civil and
criminal cases. In a medical malpractice case, the plaintiff has the duty of proving its elements, namely: (1) a duty of the
defendant to his patient; (2) the defendant's breach of this duty; (3) injury to the patient; and (4) proximate
causation between the breach and the injury suffered.17 In civil cases, the plaintiff must prove these elements by a
preponderance of evidence.

A medical professional has the duty to observe the standard of care and exercise the degree of skill, knowledge, and
training ordinarily expected of other similarly trained medical professionals acting under the same circumstances. 18 A
breach of the accepted standard of care constitutes negligence or malpractice and renders the defendant liable for the
resulting injury to his patient.19

The standard is based on the norm observed by other reasonably competent members of the profession practicing the
same field of medicine.20 Because medical malpractice cases are often highly technical, expert testimony is usually
essential to establish: (1) the standard of care that the defendant was bound to observe under the circumstances; (2)
that the defendant's conduct fell below the acceptable standard; and (3) that the defendant's failure to observe the
industry standard caused injury to his patient.21

The expert witness must be a similarly trained and experienced physician. Thus, a pulmonologist is not qualified to
testify as to the standard of care required of an anesthesiologist22 and an autopsy expert is not qualified to testify as a
specialist in infectious diseases.23

The petitioner failed to present an expert witness.

In ruling against the respondents, the RTC relied on the findings of Dr. Reyes in the light of Dr. Avila's opinion that the
former's testimony should be given greater weight than the findings of Dr. Ramos and Dr. Hernandez. On the other
hand, the CA did not consider Dr. Reyes or Dr. Avila as expert witnesses and disregarded their testimonies in favor of
Dr. Ramos and Dr. Hernandez. The basic issue, therefore, is whose testimonies should carry greater weight?

We join and affirm the ruling of the CA.

Other than their conclusion on the culpability of the respondents, the CA and the RTC have similar factual findings. The
RTC ruled against the respondents based primarily on the following testimony of Dr. Reyes.
Witness: Well, if I remember right during my residency in my extensive training, during the operation of the
appendix, your Honor, it should really be sutured twice which we call double.

Court: What would be the result if there is only single?

Witness: We cannot guarranty [sic] the bleeding of the sutured blood vessels, your Honor.

Court: So, the bleeding of the patient was caused by the single suture?

Witness: It is possible.24
Dr. Reyes testified that he graduated from the Manila Central University (MCU) College of Medicine and passed the
medical board exams in 1994.25 He established his personal practice at his house clinic before being accepted as an
on-the-job trainee in the Department of Pathology at the V. Luna Hospital in 1994. In January 1996, he joined the PNP
Medico-Legal Division and was assigned to the Crime Laboratory in Camp Crame. He currently heads the Southern
Police District Medico-Legal division.26 His primary duties are to examine victims of violent crimes and to conduct
traumatic autopsies to determine the cause of death.

After having conducted over a thousand traumatic autopsies, Dr. Reyes can be considered an expert in traumatic
autopsies or autopsies involving violent deaths. However, his expertise in traumatic autopsies does not necessarily
make him an expert in clinical and pathological autopsies or in surgery.

Moreover, Dr. Reyes' cross-examination reveals that he was less than candid about his qualifications during his initial
testimony:
Atty. Dr. Reyes, you mentioned during your direct testimony last March 5, 2002 that you graduated in March
Castro: of 1994, is that correct?

Witness: Yes, sir.

Atty. You were asked by Atty. Fajardo, the counsel for the plaintiff, when did you finish your medical works,
Castro: and you answered the following year of your graduation which was in 1994?

Witness: Not in 1994, it was in 1984, sir.

Atty. And after you graduated Mr. Witness, were there further study that you undergo after graduation? [sic]
Castro:

Witness: It was during my service only at the police organization that I was given the chance to attend the
training, one year course.

Atty. Did you call that what you call a post graduate internship?
Castro:

Witness: Residency.

Atty. Since you call that a post graduate, you were not undergo post graduate? [sic]
Castro:

Witness: I did.

Atty. Where did you undergo a post graduate internship?

Castro:

Witness: Before I took the board examination in the year 1984, sir.

Atty. That was where?

Castro:
Witness: MCU Hospital, sir.

Atty. After the post graduate internship that was the time you took the board examination?
Castro:

Witness: Yes, sir.

Atty. And I supposed that you did it for the first take?
Castro:

Witness: Yes, sir.

Atty. Are you sure of that?

Castro:

Witness: Yes, sir.

Atty. After you took the board examination, did you pursue any study?
Castro:

Witness: During that time, no sir.

Atty. You also testified during the last hearing that "page 6 of March 5, 2002, answer of the witness: then I
Castro: was accepted as on the job training at the V. Luna Hospital at the Department of Pathologist in 1994",
could you explain briefly all of this Mr. witness?

Witness: I was given an order that I could attend the training only as a civilian not as a member of the AFP
because at that time they were already in the process of discharging civilian from undergoing training.

Atty. So in the Department of Pathology, what were you assigned to?

Castro:

Witness: Only as an observer status.

Atty. So you only observed.
Castro:

Witness: Yes, sir.

Atty. And on the same date during your direct testimony on March 5, 2002, part of which reads "well if I
Castro: remember right during my residency in my extensive training during the operation of the appendix," what
do you mean by that Mr. witness?

Witness: I was referring to my internship, sir.

Atty. So this is not a residency training?

Castro:

Witness: No, sir.

Atty. This is not a specialty training?

Castro:

Witness: No, sir.

Atty. This was the time the year before you took the board examination?
Castro:

Witness: That's right, sir. Yes, sir.

Atty. You were not then a license[d] doctor?

Castro:

Witness: No, sir.

Atty. And you also mentioned during the last hearing shown by page 8 of the same transcript of the
Castro: stenographic notes, dated March 5,2002 and I quote "and that is your residence assignment?", and you
answered "yes, sir." What was the meaning of your answer? What do you mean when you say yes, sir?
 xxxx

Witness: Okay, I stayed at the barracks of the Southern Police District Fort Bonifacio.

Atty. So this is not referring to any kind of training?

Castro:

Witness: No, sir.

Atty. This is not in anyway related to appendicitis?

Castro:

Witness: No, sir.27

Atty. Reyes appears to have inflated his qualifications during his direct testimony. First, his "extensive training during
[his] residency" was neither extensive actual training, nor part of medical residency. His assignment to the V. Luna
Hospital was not as an on-the-job trainee but as a mere observer. This assignment was also before he
was actually licensed as a doctor. Dr. Reyes also loosely used the terms "residence" and "residency" - terms that carry
a technical meaning with respect to medical practice -during his initial testimony28 to refer to (1) his physical place of
dwelling and (2) his internship before taking the medical board exams. This misled the trial court into believing that he
was more qualified to give his opinion on the matter than he actually was.

Perhaps nothing is more telling about Dr. Reyes' lack of expertise in the subject matter than the petitioner's counsel's
own admission during Dr. Reyes' cross examination.
Atty. How long were you assigned to observe with the Department of Pathology?
Castro:

Witness: Only 6 months, sir.

Atty. During your studies in the medical school, Mr. Witness, do you recall attending or having participated or
Castro: [sic] what you call motivity mortality complex?

Atty. Your honor, what is the materiality?

Fajardo:

Atty. That is according to his background, your honor. This is a procedure which could more or less measure
Castro: his knowledge in autopsy proceedings when he was in medical school and compared to what he is
actually doing now.
 Atty. The witness is not an expert witness, your honor.
Fajardo:

Atty. He is being presented as an expert witness, your honor.29

Castro:
When Atty. Castro attempted to probe Dr. Reyes about his knowledge on the subject of medical or pathological
autopsies, Dr. Fajardo objected on the ground that Dr. Reyes was not an expert in the field. His testimony was offered to
prove that Dr. Inso was negligent during the surgery without necessarily offering him as an expert witness.
Atty. x x x The purpose of this witness is to establish that there was negligence on the surgical operation of
Fajardo: the appendix or in the conduct of the appendectomy by the defendant doctor on the deceased Lilian
Villaran Borromeo.30
Dr. Reyes is not an expert witness who could prove Dr. Inso's alleged negligence. His testimony could not have
established the standard of care that Dr. Inso was expected to observe nor assessed Dr. Inso's failure to observe this
standard. His testimony cannot be relied upon to determine if Dr. Inso committed errors during the operation, the
severity of these errors, their impact on Lilian's probability of survival, and the existence of other diseases/conditions
that might or might not have caused or contributed to Lilian's death.

The testimony of Dr. Avila also has no probative value in determining whether Dr. Inso was at fault. Dr. Avila testified in
his capacity as an expert in medical jurisprudence, not as an expert in medicine, surgery, or pathology. His testimony
fails to shed any light on the actual cause of Lilian's death.

On the other hand, the respondents presented testimonies from Dr. Inso himself and from two expert witnesses in
pathology and surgery.

Dr. Ramos graduated from the Far Eastern University, Nicanor Reyes Medical Foundation, in 1975. He took up his post-
graduate internship at the Quezon Memorial Hospital in Lucena City, before taking the board exams. After obtaining his
professional license, he underwent residency training in pathology at the Jose R. Reyes Memorial Center from 1977 to
1980. He passed the examination in Anatomic, Clinical, and Physical Pathology in 1980 and was inducted in 1981. He
also took the examination in anatomic pathology in 1981 and was inducted in 1982.31

At the time of his testimony, Dr. Ramos was an associate professor in pathology at the Perpetual Help Medical School
in Bian, Laguna, and at the De La Salle University in Dasmarias, Cavite. He was the head of the Batangas General
Hospital Teaching and Training Hospital where he also headed the Pathology Department. He also headed the
Perpetual Help General Hospital Pathology department.32

Meanwhile, Dr. Hernandez at that time was a General Surgeon with 27 years of experience as a General Practitioner
and 20 years of experience as a General Surgeon. He obtained his medical degree from the University of Santo Tomas
before undergoing five years of residency training as a surgeon at the Veterans Memorial Center hospital. He was
certified as a surgeon in 1985. He also holds a master's degree in Hospital Administration from the Ateneo de Manila
University.33

He was a practicing surgeon at the: St. Luke's Medical Center, Fatima Medical Center, Unciano Medical Center in
Antipolo, Manila East Medical Center of Taytay, and Perpetual Help Medical Center in Bian. 34 He was also an
associate professor at the Department of Surgery at the Fatima Medical Center, the Manila Central University, and the
Perpetual Help Medical Center. He also chaired the Department of Surgery at the Fatima Medical Center. 35

Dr. Hernandez is a Fellow of the American College of Surgeons, the Philippine College of Surgeons, and the Philippine
Society of General Surgeons. He is a Diplomate of the Philippine Board of Surgery and a member of the Philippine
Medical Association and the Antipolo City Medical Society.36
Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual surgical procedure. 37 Both experts agreed that Lilian
could not have died from bleeding of the appendical vessel. They identified Lilian's cause of death as massive blood
loss resulting from DIC.

To our mind, the testimonies of expert witnesses Dr. Hernandez and Dr. Ramos carry far greater weight than that of Dr.
Reyes. The petitioner's failure to present expert witnesses resulted in his failure to prove the respondents' negligence.
The preponderance of evidence clearly tilts in favor of the respondents.

Res ipsa loquitur is not applicable when the failure to observe due care is not immediately apparent to the
layman.

The petitioner cannot invoke the doctrine of res ipsa loquitur to shift the burden of evidence onto the respondent. Res
ipsa loquitur, literally, "the thing speaks for itself;" is a rule of evidence that presumes negligence from the very nature of
the accident itself using common human knowledge or experience.

The application of this rule requires: (1) that the accident was of a kind which does not ordinarily occur unless someone
is negligent; (2) that the instrumentality or agency which caused the injury was under the exclusive: control of the person
charged with negligence; and (3) that the injury suffered must not have been due to any voluntary action or contribution
from the injured person.38 The concurrence of these elements creates a presumption of negligence that, if unrebutted,
overcomes the plaintiffs burden of proof.

This doctrine is used in conjunction with the doctrine of common knowledge. We have applied this doctrine in the
following cases involving medical practitioners:

a. Where a patient who was scheduled for a cholecystectomy (removal of gall stones) but was otherwise
healthy suffered irreparable brain damage after being administered anesthesia prior to the operation. 39

b. Where after giving birth, a woman woke up with a gaping burn wound close to her left armpit; 40

c. The removal of the wrong body part during the operation; and

d. Where an operating surgeon left a foreign object (i.e., rubber gloves) inside the body of the patient.41

The rule is not applicable in cases such as the present one where the defendant's alleged failure to observe due care is
not immediately apparent to a layman.42 These instances require expert opinion to establish the culpability of the
defendant doctor. It is also not applicable to cases where the actual cause of the injury had been identified or
established.43

While this Court sympathizes with the petitioner's loss, the petitioner failed to present sufficient convincing evidence to
establish: (1) the standard of care expected of the respondent and (2) the fact that Dr. Inso fell short of this expected
standard. Considering further that the respondents established that the cause of Lilian's uncontrollable bleeding (and,
ultimately, her death) was a medical disorder - Disseminated Intravascular Coagulation we find no reversible errors in
the CA's dismissal of the complaint on appeal.

WHEREFORE, we hereby DENY the petition for lack of merit. No costs.

SO ORDERED.chanroblesvirtuallawlibrary

G.R. No. 210445, December 07, 2015

NILO B. ROSIT, Petitioner, v. DAVAO DOCTORS HOSPITAL AND DR. ROLANDO G. GESTUVO, Respondent.

DECISION

VELASCO JR., J.:

 The Case

This is a petition filed under Rule 45 of the Rules of Court assailing the Decision and Resolution dated January 22,
20131 and November 7, 2013,2 respectively, of the Court of Appeals, Cagayan De Oro City (CA), in CA-G.R. CV No.
00911-MIN. The CA Decision reversed the Decision dated September 14, 2004 3of the Regional Trial Court, Branch 33
in Davao City-(RTC) in Civil Case No. 27,354-99, a suit for damages thereat which Nilo B. Rosit (Rosit) commenced
against Dr. Rolando Gestuvo (Dr. Gestuvo).

Factual Antecedents

On January 15, 1999, Rosit figured in a motorcycle accident. The X-ray soon taken the next day at the Davao Doctors
Hospital (DDH) showed that he fractured his jaw. Rosit was then referred to Dr. Gestuvo, a specialist in mandibular
injuries,4 who, on January 19, 1999, operated on Rosit.

During the operation, Dr. Gestuvo used a metal plate fastened to the jaw with metal screws to immobilize the mandible.
As the operation required the smallest screws available, Dr. Gestuvo cut the screws on hand to make them smaller. Dr.
Gestuvo knew that there were smaller titanium screws available in Manila, but did not so inform Rosit supposing that the
latter would not be able to afford the same.5

Following the procedure, Rosit could not properly open and close his mouth and was in pain. X-rays done on Rosit two
(2) days after the operation showed that the fracture in his jaw was aligned but the screws used on him touched his
molar. Given the X-ray results, Dr. Gestuvo referred Rosit to a dentist. The dentist who checked Rosit, Dr. Pangan,
opined that another operation is necessary and that it is to be performed in Cebu.6

Alleging that the dentist told him that the operation conducted on his mandible was improperly done, Rosit went back to
Dr. Gestuvo to demand a loan to defray the cost of the additional operation as well as the expenses of the trip to Cebu.
Dr. Gestuvo gave Rosit P4,500.

Rosit went to Cebu on February 19, 1999, still suffering from pain and could hardly open his mouth.

In Cebu, Dr. Pangan removed the plate and screws thus installed by Dr. Gestuvo and replaced them with smaller
titanium plate and screws. Dr. Pangan also extracted Rosit's molar that was hit with a screw and some bone fragments.
Three days after the operation, Rosit was able to eat and speak well and could open and close his mouth normally. 7

On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the cost of the operation and the expenses
he incurred in Cebu amounting to P140,000, as well as for the P50,000 that Rosit would have to spend for the removal
of the plate and screws that Dr. Pangan installed. Dr. Gestuvo refused to pay. 8

Thus, Rosit filed a civil case for damages and attorney's fees with the RTC against Dr. Gestuvo and DDH, the suit
docketed as Civil Case No. 27,354-99.

The Ruling of the Regional Trial Court

The RTC freed DDH from liability on the ground that it exercised the proper diligence in the selection and supervision of
Dr. Gestuvo, but adjudged Dr. Gestuvo negligent and ruled, thus:
FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to have preponderantly established his cause of action in
the complaint against defendant Dr. Rolando G. Gestuvo only, judgment is hereby rendered for the plaintiff and against
said defendant, ordering the defendant DR. ROLANDO G. GESTUVO to pay unto plaintiff NILO B. ROSIT the
following:chanRoblesvirtualLawlibrary

a) the sum of ONE HUNDRED FORTY THOUSAND ONE HUNDRED NINETY NINE PESOS and 13/100
(P140,199.13) representing reimbursement of actual expenses incurred by plaintiff in the operation and re-
operation of his mandible;
 b) the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT PESOS (P29,068.00) representing
reimbursement of the filing fees and appearance fees;

c) the sum of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as and for attorney's fees;

d) the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages;

e) the amount of TEN THOUSAND PESOS (P10,000.00) as exemplary damages; and

f) the costs of the suit.

For lack of merit, the complaint against defendant DAVAO DOCTORS HOSPITAL and the defendants' counterclaims
are hereby ordered DISMISSED.

Cost against Dr. Rolando G. Gestuvo.

SO ORDERED.
In so ruling, the trial court applied the res ipsa loquitur principle holding that "the need for expert, medical testimony may
be dispensed with because the injury itself provides the proof of negligence."

Therefrom, both parties appealed to the CA.

The Ruling of the Court of Appeals

In its January 22, 2013 Decision, the CA modified the appealed judgment by deleting the awards made by the trial court,
disposing as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The Decision dated September 14, 2004 of the Regional Trial
Court, Branch 33, Davao City, rendered in Civil Case No. 27,354-99 is hereby MODIFIED. The monetary awards
adjudged in favor of Nilo B. Rosit are hereby DELETED for lack of basis.

SO ORDERED.
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is not applicable and that the testimony of an expert
witness is necessary for a finding of negligence. The appellate court also gave credence to Dr. Pangan's letter stating
the opinion that Dr. Gestuvo did not commit gross negligence in his emergency management of Rosit's fractured
mandible.

Rosit's motion for reconsideration was denied in the CA's November 7, 2013 Resolution.

Hence, the instant appeal.

The Issue

The ultimate issue for our resolution is whether the appellate court correctly absolved Dr. Gestuvo from liability.

The Court's Ruling

The petition is impressed with merit.

In Flores v. Pineda,9 the Court explained the concept of a medical negligence case and the elements required for its
prosecution, viz:chanRoblesvirtualLawlibrary

A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused
bodily harm to or the death of a patient. There are four elements involved in a medical negligence case, namely:
duty, breach, injury, and proximate causation.

Duty refers to the standard of behavior which imposes restrictions on one's conduct. The standard in turn refers to the
amount of competence associated with the proper discharge of the profession. A physician is expected to use at least
the same level of care that any other reasonably competent doctor would use under the same circumstances. Breach of
duty occurs when the physician fails to comply with these professional standards. If injury results to the patient as a
result of this breach, the physician is answerable for negligence. (Emphasis supplied)

An expert witness is not necessary as the res ipsa loquitur doctrine is applicable

To establish medical negligence, this Court has held that an expert testimony is generally required to define the
standard of behavior by which the court may determine whether the physician has properly performed the requisite duty
toward the patient. This is so considering that the requisite degree of skill and care in the treatment of a patient is
usually a matter of expert opinion.10

Solidum v. People of the Philippines11 provides an exception. There, the Court explained that where the application of
the principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical negligence cases:
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony
applies only to such matters clearly within the domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts. x x x

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the
area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a
patient's jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under
the influence of anesthetic, during or following an operation for appendicitis, among others.
We have further held that resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert
testimony in medical negligence cases may be availed of if the following essential requisites are satisfied: (1) the
accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that
caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the person injured.12

In its assailed Decision, the CA refused to acknowledge the application of the res ipsa loquitur doctrine on the ground
that the foregoing elements are absent. In particular, the appellate court is of the position that post-operative pain is not
unusual after surgery and that there is no proof that the molar Dr. Pangan removed is the same molar that was hit by
the screw installed by Dr. Gestuvo in Rosit's mandible. Further, a second operation was conducted within the 5-week
usual healing period of the mandibular fracture so that the second element cannot be considered present. Lastly, the CA
pointed out that the X-ray examination conducted on Rosit prior to his first surgery suggests that he had "chronic
inflammatory lung disease compatible," implying that the injury may have been due to Rosit's peculiar condition, thus
effectively negating the presence of the third element.13

After careful consideration, this Court cannot accede to the CA's findings as it is at once apparent from the records that
the essential requisites for the application of the doctrine of res ipsa loquitur are present.
The first element was sufficiently established when Rosit proved that one of the screws installed by Dr. Gestuvo struck
his molar. It was for this issue that Dr. Gestuvo himself referred Rosit to Dr. Pangan. In fact, the affidavit of Dr. Pangan
presented by Dr. Gestuvo himself before the trial court narrated that the same molar struck with the screw installed by
Dr. Gestuvo was examined and eventually operated on by Dr. Pangan. Dr. Gestuvo cannot now go back and say that
Dr. Pangan treated a molar different from that which was affected by the first operation.

Clearly, had Dr. Gestuvo used the proper size and length of screws and placed the same in the proper locations, these
would not have struck Rosit's teeth causing him pain and requiring him to undergo a corrective surgery.

Dr. Gestuvo knew that the screws he used on Rosit were too large as, in fact, he cut the same with a saw. 14 He also
stated during trial that common sense dictated that the smallest screws available should be used. More importantly, he
also knew that these screws were available locally at the time of the operation.15 Yet, he did not avail of such items and
went ahead with the larger screws and merely sawed them off. Even assuming that the screws were already at the
proper length after Dr. Gestuvo cut the same, it is apparent that he negligently placed one of the screws in the wrong
area thereby striking one of Rosit's teeth.

In any event, whether the screw hit Rosit's molar because it was too long or improperly placed, both facts are the
product of Dr. Gestuvo's negligence. An average man of common intelligence would know that striking a tooth with any
foreign object much less a screw would cause severe pain. Thus, the first essential requisite is present in this case.

Anent the second element for the res ipsa loquitur doctrine application, it is sufficient that the operation which resulted in
the screw hitting Rosit's molar was, indeed, performed by Dr. Gestuvo. No other doctor caused such fact.

The CA finds that Rosit is guilty of contributory negligence in having Dr. Pangan operate on him during the healing
period of his fractured mandible. What the CA overlooked is that it was Dr. Gestuvo himself who referred Rosit to Dr.
Pangan. Nevertheless, Dr. Pangan's participation could not have contributed to the reality that the screw that Dr.
Gestuvo installed hit Rosit's molar.

Lastly, the third element that the injury suffered must not have been due to any voluntary action or contribution of the
person injured was satisfied in this case. It was not shown that Rosit's lung disease could have contributed to the pain.
What is clear is that he suffered because one of the screws that Dr. Gestuvo installed hit Rosit's molar.

Clearly then, the res ipsa loquitur doctrine finds application in the instant case and no expert testimony is
required to establish the negligence of defendant Dr. Gestuvo.

Petitioner was deprived of the opportunity to make an "informed consent"

What is more damning for Dr. Gestuvo is his failure to inform Rosit that such smaller screws were available in Manila,
albeit at a higher price.16 As testified to by Dr. Gestuvo himself:
Court This titanium materials according to you were already available in the Philippines since the time of Rosit's
Alright. accident?

Witness Yes, your Honor.

xxxx

Court Did you inform Rosit about the existence of titanium screws and plates which according to you is the
screws and plates of choice?
 Witness No, your Honor.

xxxx

Witness The reason I did not inform him anymore Judge because what I thought he was already hard up with the
down payment. And if I will further introduce him this screws, the more he will not be able to afford the
operation.

xxxx

Court This titanium screws and plates were available then it is up to Rosit to decide whether to use it or not
because after all the material you are using is paid by the patient himscll, is it not?

Witness Yes, that is true.

Li v. Soliman17 made the following disquisition on the relevant Doctrine of Informed Consent in relation to medical
negligence cases, to wit:
The doctrine of informed consent within the context of physician-patient relationships goes far back into English
common law. x x x From a purely ethical norm, informed consent evolved into a general principle of law that a
physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise
of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a
choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise
his judgment by reasonably balancing the probable risks against the probable benefits.

xxxx

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of
informed consent: "(1) the physician had a duty to disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the
proposed treatment." The gravamen in an informed consent case requires the plaintiff to "point to significant
undisclosed information relating to the treatment which would have altered her decision to undergo it." (Emphasis
supplied)
The four adverted essential elements above are present here.

First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the risks of using the larger screws for the operation. This
was his obligation as the physician undertaking the operation.

Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding by himself that Rosit could not afford to get the
more expensive titanium screws.

Third, had Rosit been informed that there was a risk that the larger screws are not appropriate for the operation and that
an additional operation replacing the screws might be required to replace the same, as what happened in this case,
Rosit would not have agreed to the operation. It bears pointing out that Rosit was, in fact, able to afford the use of the
smaller titanium screws that were later used by Dr. Pangan to replace the screws that were used by Dr. Gestuvo.

Fourth, as a result of using the larger screws, Rosit experienced pain and could not heal properly because one of the
screws hit his molar. This was evident from the fact that just three (3) days after Dr. Pangan repeated the operation
conducted by Dr. Gestuvo, Rosit was pain-free and could already speak. This is compared to the one (1) month that
Rosit suffered pain and could not use his mouth after the operation conducted by Dr. Gestuvo until the operation of Dr.
Pangan.

Without a doubt, Dr. Gestuvo is guilty of withholding material information which would have been vital in the decision of
Rosit in going through with the operation with the materials at hand. Thus, Dr. Gestuvo is also guilty of negligence on
this ground.

Dr. Pangan's Affidavit is not admissible

The appellate court's Decision absolving Dr. Gestuvo of negligence was also anchored on a letter signed by Dr. Pangan
who stated the opinion that Dr. Gestuvo did not commit gross negligence in his emergency management of Mr. Rosit's
fractured mandible.18 Clearly, the appellate court overlooked the elementary principle against hearsay evidence.

In Dantis v. Maghinang, Jr.,19 the Court reiterated the oft-repeated rule that "an affidavit is merely hearsay evidence
where its affiant/maker did not take the witness stand." Here, Dr. Pangan never took the witness stand to affirm the
contents of his affidavit. Thus, the affidavit is inadmissible and cannot be given any weight. The CA, therefore, erred
when it considered the affidavit of Dr. Pangan, mpreso for considering the same as expert testimony.

Moreover, even if such affidavit is considered as admissible and the testimony of an expert witness, the Court is not
bound by such testimony. As ruled in Ilao-Quianay v. Mapile:20
Indeed, courts are not bound by expert testimonies. They may place whatever weight they choose upon such
testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly
within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the
witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor
of the side for whom he testifies, and any other matters which serve to illuminate his statements. The opinion of an
expert should be considered by the court in view of all the facts and circumstances of the case. The problem of the
evaluation of expert testimony is left to the discretion of the trial court whose ruling thereupon is not revicwable in the
absence of an abuse of that discretion.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of negligence or not will not bind the Court. The Court must
weigh and examine such testimony and decide for itself the merits thereof.

As discussed above, Dr. Gestuvo's negligence is clearly demonstrable by the doctrines of res ipsa loquiturand informed
consent.

Damages

For the foregoing, the trial court properly awarded Rosit actual damages after he was able to prove the actual expenses
that he incurred due to the negligence of Dr. Gestuvo. In Mendoza v. Spouses Gomez,21the Court explained that a
claimant is entitled to actual damages when the damage he sustained is the natural and probable consequences of the
negligent act and he adequately proved the amount of such damage.

Rosit is also entitled to moral damages as provided under Article 2217 of the Civil Code,22 given the unnecessary
physical suffering he endured as a consequence of defendant's negligence.

To recall, from the time he was negligently operated upon by Dr. Gestuvo until three (3) days from the corrective surgery
performed by Dr. Pangan, or for a period of one (1) month, Rosit suffered pain and could not properly use his jaw to
speak or eat.

The trial court also properly awarded attorney's fees and costs of suit under Article 2208 of the Civil Code, 23 since Rosit
was compelled to litigate due to Dr. Gestuvo's refusal to pay for Rosit's damages.
As to the award of exemplary damages, the same too has to be affirmed. In Mendoza,24 the Court enumerated the
requisites for the award of exemplary damages:
Our jurisprudence sets certain conditions when exemplary damages may be awarded: First, they may be imposed by
way of example or correction only in addition, among others, to compensatory damages, and cannot be recovered as a
matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the
claimant. Second, the claimant must first establish his right to moral, temperate, liquidated or compensatory damages.
Third, the wrongful act must be accompanied by bad faith, and the award would be allowed only if the guilty party acted
in a wanton, fraudulent, reckless, oppressive or malevolent manner.
The three (3) requisites are met. Dr. Gestuvo's actions are clearly negligent. Likewise, Dr. Gestuvo acted in bad faith or
in a wanton, fraudulent, reckless, oppressive manner when he was in breach of the doctrine of informed consent. Dr.
Gestuvo had the duty to fully explain to Rosit the risks of using large screws for the operation. More importantly, he
concealed the correct medical procedure of using the smaller titanium screws mainly because of his erroneous belief
that Rosit cannot afford to buy the expensive titanium screws. Such concealment is clearly a valid basis for an award of
exemplary damages.

WHEREFORE, the instant petition is GRANTED. The CA Decision dated January 22, 2013 and Resolution dated
November 7, 2013 in CA-G.R. CV No. 00911-MIN are hereby REVERSED and SET ASIDE. Further, the Decision dated
September 14, 2004 of the Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-99 is
hereby REINSTATED and AFFIRMED.

SO ORDERED.chanroblesvirtuallawlibrary