1
the length of several coaches. As the train slowed down another
JOSE CANGCO, plaintiff-appellant, vs. MANILA R
AILROAD CO., defendant-appellee. Ramon
Sotelo, for appellant. Kincaid & Hartigan, for
appellee.
1. MASTER AND SERVANT; CONTRACT; NEGLIGENCE.
— Failure to perform a contract cannot be excused upon the ground
that the breach was due to the negligence of a servant of the obligor,
and that the latter exercised due diligence in the selection and control
of the servant.
2. CONTRACTS; NEGLIGENCE:; CULPA AQUILIANA;
CULPA CONTRACTUAL. — The distinction between negligence as
the source of an obligation (culpa aquiliana) and negligence in the
performance of a contract (culpa contractual ) pointed out.
3. CARRIERS; PASSENGERS; NEGLIGENCE;
ALIGHTING FROM MOVING TRAIN. — It is not negligence per se for
a traveler to alight from a slowly moving train.
FISHER, J p:
At the time of the occurrence which gave rise to this
litigation the plaintiff, Jose Cangco, was in the employment of
the Manila Railroad Company in the capacity of clerk, with a monthly
wage of P25. He lived in the pueblo of San Mateo, in the province of
Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the
company's office in the city of Manila where he worked, he used a
pass, supplied by the company, which entitled him to ride upon the
company's trains free of charge. Upon the occasion in question,
January 20, 1915, the plaintiff was returning home by rail from his daily
labors; and as the train drew up to the station in San Mateo the plaintiff
arose from his seat in the second class-car where he was riding and,
making his exit through the door, took his position upon the steps of
the coach, seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San
Mateo station there is a cement platform which begins to rise with a
moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover
upon the platform and in leaving them so placed as to be a menace to the
passenger, named Emilio Zuniga, also an employee of
the railroad company, got off the same car, alighting safely at the point
where the platform begins to rise from the level of the ground. When the
train had proceeded a little farther the plaintiff Jose Cangco stepped off
also, but one or both of his feet came in contact with a sack of
watermelons with the result that his feet slipped from under him and he
fell violently on the platform. His body at once rolled from the platform and
was drawn under the moving car, where his right arm was badly crushed
and lacerated. It appears that after the plaintiff alighted from the train the
car moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night,
and as the railroad station was lighted dimly by a single light located
some distance away, objects on the platform where the accident
occurred were difficult to discern, especially to a person emerging from a
lighted car.
The explanation of the presence of a sack of melons on the
platform where the plaintiff alighted is found in the fact that it was the
customary season for harvesting these melons and a large lot had been
brought to the station for shipment to the market. They were contained in
numerous tow sacks which had been piled on the platform in a row one
upon another. The testimony shows that this row of sacks was so placed
that there was a space of only about two feet between the sacks of
melons and the edge of the platform; and it is clear that the fall of the
plaintiff was due to the fact that his foot alighted upon one of these
melons at the moment he stepped upon the platform. His statement that
he failed to see these objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious
condition, and it appeared that the injuries which he had received were
very serious. He was therefore brought at once to a certain hospital in the
city of Manila where an examination was made and his arm was
amputated. The result of this operation was unsatisfactory, and the
plaintiff was then carried to another hospital where a second operation
was performed and the member was again amputated higher up near the
shoulder. It appears in evidence that the plaintiff expended the sum of
P790.25 in the form of medical and surgical fees and for other expenses
in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the
Court of First Instance of the city of Manila to recover damages of the
defendant company, founding his action upon the negligence of the
servants and employees of the defendant in placing the sacks of melons
security of passenger alighting from the company's trains. At the hearing
in the Court of First Instance, his Honor, the trial judge, found the facts
substantially as above stated, and drew therefrom his conclusion to the
effect that, although negligence was attributable to the defendant by
reason of the fact that the sacks of melons were so placed as to obstruct
passengers passing to and from the cars, nevertheless, the plaintiff
himself had failed to use due caution in alighting from the coach and was
therefore precluded from recovering. Judgment was accordingly entered
in favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of
the railroad company were guilty of negligence in piling these sacks on
the platform in the manner above stated; that their presence caused the
plaintiff to fall as he alighted from the train; and that they therefore
constituted an effective legal cause of the injuries sustained by the
plaintiff. It necessarily follow s that the defendant company is liable for the
damage thereby occasioned unless recovery is barred by the plaintiff's
own contributory negligence. In resolving this problem it is necessary that
each of these conceptions of liability, to-wit, the primary responsibility of
the defendant company and the contributory negligence of the plaintiff
should be separately examined.
It is important to note that the foundation of the legal liability of
the defendant is the contract of carriage, and that the obligation to
respond for the damage which plaintiff has suffered arises, if at all, from
the breach of that contract by reason of the failure of defendant to
exercise due care in its performance. That is to say, its liability is direct
and immediate, differing essentially, in the legal viewpoint from that
presumptive responsibility for the negligence of its servants, imposed by
article 1903 of the Civil Code, which can be rebutted by proof of the
exercise of due care in their selection and supervision. Article 1903 of the
Civil Code is not applicable to obligations arising ex contractu, but only to
extra-contractual obligations — or to use the technical form of expression,
that article relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103
and 1104 of the Civil Code, clearly points out this distinction, which was
also recognized by this Court in its decision in the case of Rakes vs.
Atlantic, Gulf and Pacific Cc. (7 Phil. Rep., 359). In commenting upon
article 1093 (vol. 8, p. 30) Manresa clearly points out the difference
between "culpa, substantive and independent, which of itself constitutes
the source of an obligation between persons not formerly connected by

any legal tie" and culpa considered as an "accident in the performance
of an obligation already existing . . .."
In the Rakes case (supra) the decision of this court was
made to rest squarely upon the proposition that article 1903 of the Civil
Code is not applicable to acts of negligence which constitute the
breach of a contract.
Upon this point the Court said:
"The acts to which these articles [1902
and 1903 of the Civil Code] are applicable are
understood to be those not growing out of
pre-existing duties of the parties to one another But
where relations already formed give rise to duties,
whether springing from contract or quasi-contract,
then breaches of those duties are subject to articles
1101, 1103 and 1104 of the same code."
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil.
Rep., 359 at p. 365.)
This distinction is of the utmost importance. The liability,
which, under the Spanish law, is, in certain cases imposed upon
employers with respect to damages occasioned by the negligence of
their employees to persons to whom they are not bound by contract, is
not based, as in the English Common Law, upon the principle
of respondent superior — if it were, the master would be liable in every
case and unconditionally — but upon the principle announced in
article 1902 of the Civil Code, which imposes upon all persons who by
their fault or negligence, do injury to another, the obligation of making
good the damage caused. One who places a powerful automobile in
the hands of a servant whom he knows to be ignorant of the method of
managing such a vehicle, is himself guilty of an act of negligence
which makes him liable for all the consequences of his imprudence.
The obligation to make good the damage arises at the very instant that
the unskillful servant, while acting within the scope of his employment,
causes the injury. The liability of the master is personal and direct. But,
if the master has not been guilty of any negligence whatever in the
selection and direction of the servant, he is not liable for the acts of the
latter, whether done within the scope of his employment or not, if the
damage done by the servant does not amount to a breach of the
contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in
the selection and control of the servant relieves the master from
liability for the latter's acts — on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the
liability arising from extra-contractual culpa is always based upon
a voluntary act or omission which, without willful intent, but by mere
negligence or inattention, has caused damage to another. A master who
exercises all possible care in the selection of his servant, taking into
consideration the qualifications they should possess for the discharge of
the duties which it is his purpose to confide to them, and directs them with
equal diligence, thereby performs his duty to third persons to whom he is
bound by no contractual ties, and he incurs no liability whatever if, by
reason of the negligence of his servants, even within the scope of their
employment, such third persons suffer damage. True it is that under
article 1903 of the Civil Code the law creates a presumption that he has
been negligent in the selection or direction of his servant, but the
presumption is rebuttable and yields to proof of due care and diligence in
this respect.
The supreme court of Porto Rico, in interpreting identical
provisions, as found in the Porto Rican Civil Code, has held that these
articles are applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its
decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil. Rep.,
624), which was an action brought upon the theory of the
extra-contractual liability of the defendant to respond for the damage
caused by the carelessness of his employee while acting within the
scope of his employment The Court, after citing the last paragraph of
article 1903 of the Civil Code, said:
"From this article two things are apparent: (1)
That when an injury is caused by the negligence of a
servant or employee there instantly arises a
presumption of law that there was negligence on the
part of the master or employer either in the selection of
the servant or employee, or in supervision over him
after the selection, or both; and (2) that presumption
is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily
that if the employer shows to the satisfaction of the
court that in selection and supervision he has
exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved
from liability.
2
"This theory bases the responsibility of the
master ultimately on his own negligence and not on
that of his servant. This is the notable peculiarity of the
Spanish law of negligence. It is, of course, in striking
contrast to the American doctrine that, in relations with
strangers, the negligence of the servant is conclusively
the negligence of the master."
The opinion there expressed by this Court, to the effect that in
case of extra-contractual culpa based upon negligence, it is necessary
that there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely establishes
a rebuttable presumption, is in complete accord with the authoritative
opinion of Manresa, who says (vol. 12, p. 611) that the liability created by
article 1903 is imposed by reason of the breach of the duties inherent in
the special relations of authority or superiority existing between the
person called upon to repair the damage and the one who, by his act or
omission, was the cause of it.
On the other hand, the liability of masters and employers for
the negligent acts or omissions of their servants or agents, when such
acts or omissions cause damages which amount to the breach of a
contract, is not based upon a mere presumption of the master's
negligence in their selection or control, and proof of exercise of the
utmost diligence and care in this regard does not relieve the master of his
liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or
contractual. Extra-contractual obligation has its source in the breach or
omission of those mutual duties which civilized society imposes upon its
members, or which arise from these relations, other than contractual, of
certain members of society to others, generally embraced in the concept
of status. The legal rights of each member of society constitute the
measure of the corresponding legal duties, mainly negative in character,
which the existence of those rights imposes upon all other members of
society. The breach of these general duties whether due to willful intent
or to mere inattention, if productive of injury, gives rise to an obligation to
indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests
upon the fact that in cases of non-contractual obligation it is the wrongful
or negligent act or omission itself which creates thevinculum juris,
whereas in contractual relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties when entering into
the contractual relation.

With respect to extra-contractual obligation arising from
negligence, whether of act or omission, it is competent for the
legislature to elect — and our Legislature has so elected — to limit
such liability to cases in which the person upon whom such an
obligation is imposed is morally culpable or, on the contrary, for
reasons of public policy, to extend that liability, without regard to the
lack of moral culpability, so as to include responsibility for the
negligence of those persons whose acts or omissions are imputable,
by a legal fiction, to others who are in a position to exercise an
absolute or limited control over them. The legislature which adopted
our Civil Code has elected to limit extra contractual liability — with
certain well-defined exceptions — to cases in which moral culpability
can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in one's
own acts, or in having failed to exercise due care in the selection and
control of one's agents or servants, or in the control of persons who, by
reason of their status, occupy a position of dependency with respect to
the person made liable for their conduct.
The position of a natural or juridical person who has
undertaken by contract to render service to another, is wholly different
from that to which article 1903 relates. When the source of the
obligation upon which plaintiff's cause of action depends is a negligent
act or omission, the burden of proof rests upon plaintiff to prove the
negligence — if he does not his action fails. But when the facts
averred show a contractual undertaking by defendant for the benefit of
plaintiff, and it is alleged that plaintiff has failed or refused to perform
the contract, it is not necessary for plaintiff to specify in his pleadings
whether the breach of the contract is due to willful fault or to
negligence on the part of the defendant, or of his servants or agents.
Proof of the contract and of its nonperformance is sufficient prima
facie to warrant a recovery.
"As a general rule . . . it is logical that in
case of extra-contractual culpa, a suing creditor
should assume the burden of proof of its existence,
as the only fact upon which his action is based;
while on the contrary, in a case of negligence which
presupposes the existence of a contractual
obligation, if the creditor shows that it exists and that
it has been broken, it is not necessary for him to
prove the negligence." (Manresa, vol. 8, p. 71 [1907
ed., p. 76].)
As it is not necessary for the plaintiff in an action for the breach
of a contract to show that the breach was due to the negligent conduct of
defendant or of his servants, even though such be in fact the actual
cause of the breach, it is obvious that proof on the part of defendant that
the negligence or omission of his servants or agents caused the breach
of the contract would not constitute a defense to the action. If the
negligence of servants or agents could be invoked as a means of
discharging the liability arising from contract, the anomalous result would
be that persons acting through the medium of agents or servants in the
performance of their contracts, would be in a better position than those
acting in person. If one delivers a valuable watch to a watchmaker who
contracts to repair it, and the bailee, by a personal negligent act causes
its destruction, he is unquestionably liable. Would it be logical to free him
from his liability for the breach of his contract, which involves the duty to
exercise due care in the preservation of the watch, if he shows that it was
his servant whose negligence caused the injury? If such a theory could
be accepted, juridical persons would enjoy practically complete immunity
from damages arising from the breach of their contracts if caused by
negligent acts of omission or commission on the part of their servants, as
such juridical persons can of necessity only act through agents or
servants, and it would no doubt be true in most instances that reasonable
care had been taken in the selection and direction of such servants. If
one delivers securities to a banking corporation as collateral, and they
are lost by reason of the negligence of some clerk employed by the bank,
would it be just and reasonable to permit the bank to relieve itself of
liability for the breach of its contract to return the collateral upon the
payment of the debt by proving that due care had been exercised in the
selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an
obligation, and culpa contractual as a mere incident to the performance
of a contract has frequently been recognized by the supreme court of
Spain. (Sentencias of June 27, 1894; November 20, 1896; and
December 13 1896.) In the decision of November 20, 1896, it appeared
that plaintiff s action arose ex contractu, but that defendant sought to
avail himself of the provisions of article 1902 of the Civil Code as a
defense. The Spanish Supreme Court rejected defendant's contention,
saying:
"These are not cases of injury
caused, without any pre-existing obligation, by fault or
negligence, such as those to which article 1902 of the
Civil Code relates, but of damages caused by the
3
defendant's failure to carry out the undertakings
imposed by the contracts . . .."
A brief review of the earlier decision of this court involving the
liability of employers for damage done by the negligent acts of their
servants will show that in no case has the court ever decided that the
negligence of the defendant's servants [has] been held to constitute a
defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court
held that the owner of a carriage was not liable for the damages caused
by the negligence of his driver. In that case the court commented on the
fact that no evidence had been adduced in the trial court that the
defendant had been negligent in the employment of the driver, or that he
had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co.'s Successors vs. Compañia
Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant for damages
caused by the loss of a barge belonging to plaintiff which was allowed to
get adrift by the negligence of defendant's servants in the course of the
performance of a contract of towage. The court held, citing Manresa (vol.
8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract
made between it and the plaintiff . . . we do not think that the provisions of
articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374),
plaintiff sued the defendant to recover damages for personal injuries
caused by the negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was riding at the time. The
court found that the damages were caused by the negligence of the
driver of the automobile, but held that the master was not liable, although
he was present at the time, saying:
" . . . unless the negligent acts of the driver
are continued for such a length of time as to give the
owner a reasonable opportunity to observe them and
to direct the driver to desist therefrom. . . . The act
complained of must be continued in the presence of
the owner for such a length of time that the owner by
his acquiescence, makes the driver's acts his own."
In the case of Yamada vs. Manila Railroad Co. and Rachrach
Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its
conclusion as to the liability of the defendant upon article 1903, although
the facts disclosed that the injury complained of by plaintiff constituted a
breach of the duty to him arising out of the contract of transportation. The

express ground of the decision in this case was that article 1903, in
dealing with the liability of a master for the negligent acts of his
servants "makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable
presumption of negligence in the selection or direction of the servants;
and that in the particular case the presumption of negligence had not
been overcome.
It is evident, therefore, that in its decision in the Yamada
case, the court treated plaintiff's action as though founded in tort rather
than as based upon the breach of the contract of carriage, and an
examination of the pleadings and of the briefs shows that the
questions of law were in fact discussed upon this theory. Viewed from
the standpoint of the defendant the practical result must have been the
same in any event. The proof disclosed beyond doubt that the
defendant's servant was grossly negligent and that his negligence was
the proximate cause of plaintiff's injury. It also affirmatively appeared
that defendant had been guilty of negligence in its failure to exercise
proper discretion in the direction of the servant. Defendant was
therefore, liable for the injury suffered by plaintiff, whether the breach
of the duty were to be regarded as constituting culpa aquilina or culpa
contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether
negligence occurs as an incident in the course of the performance of a
contractual undertaking or is itself the source of an extra-contractual
obligation, its essential characteristics are identical. There is always
an act or omission productive of damage due to carelessness or
inattention on the part of the defendant. Consequently, when the court
holds that a defendant is liable in damages for having failed to
exercise due care, either directly, or in failing to exercise proper care
in the selection and direction of his servants, the practical result is
identical in either ease. Therefore, it follows that it is not to be inferred,
because the court held in the Yamada ease that the defendant was
liable for the damages negligently caused by its servant to a person to
whom it was bound by contract, and made reference to the fact that
the defendant was negligent in the selection and control of its servants,
that in such a case the court would have held that it would have been a
good defense to the action, if presented squarely upon the theory of
the breach of the contract, for defendant to have proved that it did in
fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by
directing the attention to the relative spheres of contractual and
extra-contractual obligations. The field of non-contractual obligation is
much more broader than that of contractual obligation, comprising, as
4
it does, the whole extent of juridical human relations. These two fields, defendant's negligent failure to perform its duty to provide a safe alighting
figuratively speaking, concentric; that is to say, the mere fact that a place.
person is bound to another by contract does not relieve him from
We are of the opinion that the correct doctrine relating to this
extra-contractual liability to such person. When such a contractual
subject is that expressed in Thompson's work on Negligence (vol. 3, sec.
relation exists the obligor may break the contract under such conditions
3010) as follows:
that the same act which constitutes a breach of the contract would have
constituted the source of an extra-contractual obligation had no contract "The test by which to determine whether the
existed between the parties. passenger has been guilty of negligence in attempting
to alight from a moving railway train, is that of ordinary
The contract of defendant to transport plaintiff carried with it, by
or reasonable care. It is to be considered whether an
implication, the duty to carry him in safety and to provide safe means of
ordinarily prudent person, of the age, sex and condition
entering and leaving its trains (Civil Code, article 1258). That duty, being
of the passenger, would have acted as the passenger
contractual, was direct and immediate, and its non-performance could
acted under the circumstances disclosed by the
not be excused by proof that the fault was morally imputable to
evidence. This care has been defined to be, not the
defendant's servants.
care which may or should be used by the prudent man
The railroad company's defense involves the assumption that generally, but the care which a man of ordinary
even granting that the negligent conduct of its servants in placing an prudence would use under similar circumstances, to
obstruction upon the platform was a breach of its contractual obligation to avoid injury." (Thompson, Commentaries on
maintain safe means of approaching and leaving its trains, the direct and Negligence, vol. 3, sec. 3010.)
proximate cause of the injury suffered by plaintiff was his own
Or, if we prefer to adopt the mode of exposition used by this
contributory negligence in failing to wait until the train had come to a
court in Picart vs. Snith (37 Phil. Rep., 809), we may say that the test is
complete stop before alighting. Under the doctrine of comparative
this; Was there anything in the circumstances surrounding the plaintiff at
negligence announced in the Rakes case (supra), if the accident was
the time he alighted from the train which would have admonished a
caused by plaintiff's own negligence, no liability is imposed upon
person of average prudence that to get off the train under the conditions
defendant, whereas if the accident was caused by defendant's
then existing was dangerous ? If so, the plaintiff should have desisted
negligence and plaintiff's negligence merely contributed to his injury, the
from alighting; and his failure so to desist was contributory negligence.
damages should be apportioned. It is, therefore, important to ascertain if
defendant was in fact guilty of negligence. As the case now before us presents itself, the only fact from
which a conclusion can be drawn to the effect that the plaintiff was guilty
It may be admitted that had plaintiff waited until the train had
of contributory negligence is that he stepped off the car without being
come to a full stop before alighting, the particular injury suffered by him
able to discern clearly the condition of the platform and while the train
could not have occurred. Defendant contends, and cites many authorities
was yet slowly moving. In considering the situation thus presented, it
in support of the contention, that it is negligence per se for a passenger to
should not be overlooked that the plaintiff was, as we find, ignorant of the
alight from a moving train. We are not disposed to subscribe to this
fact that the obstruction which was caused by the sacks of melons piled
doctrine n its absolute form. We are of the opinion that this proposition is
on the platform existed; and as the defendant was bound by reason of its
too broadly stated and is at variance with the experience of every-day life.
duty as a public carrier to afford to its passengers facilities for safe egress
In this particular instance, tat the train was barely moving when plaintiff
from its trains, the plaintiff had a right to assume, in the absence of some
alighted is shown conclusively by the fact that it came to stop within six
circumstance to warn him to the contrary, that the platform was clear. The
meters from the place where he stepped from it. Thousands of persons
place, as we have already stated, was dark, or dimly lighted, and this also
alight from trains under these conditions every day of the year, and
is proof of a failure upon the part of the defendant in the performance of a
sustain no injury where the company has kept its platform free from
duty owing by it to the plaintiff; for if it were by any possibility conceded
dangerous obstructions. There is no reason to believe that plaintiff would
that it had a right to pile these sacks in the path of alighting passengers,
have suffered any injury whatever in alighting as he did had it not been for

the placing of them in that position gave rise to the duty to light the
premises adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on
the part of the plaintiff in this case the following circumstances are to
be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The
distance from the steps of the car to the spot where the alighting
passenger would place his feet on the platform was thus reduced,
thereby decreasing the risk incident to stepping off. The nature of the
platform, constructed as it was of cement material, also assured to the
passenger a stable and even surface on which to alight. Furthermore,
the plaintiff was possessed of the vigor and agility of young manhood,
and it was by no means so risky for him to get off while the train was
yet moving as the same act would have been in an aged or feeble
person. In determining the question of contributory negligence in
performing such act — that is to say, whether the passenger acted
prudently or recklessly — the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the safety of the
passenger, and should be considered. Women, it has been observed,
as a general rule, are less capable than men of alighting with safety
under such conditions, as the nature of their wearing apparel obstructs
the free movement of the limbs. Again, it may be noted that the place
was perfectly familiar to the plaintiff, as it was his daily custom to get
on and off the train at this station. There could, therefore, be no
uncertainty in his mind with regard either to the length of the step
which he was required to take or the character of the platform where
he was alighting. Our conclusion is that the conduct of the plaintiff in
undertaking to alight while the train was yet slightly under way was not
characterized by imprudence and that therefore he was not guilty of
contributory negligence.
The evidence shows that the plaintiff, at the time of the
accident, was earning P25 a month as a copyist clerk, and that the
injuries he has suffered have permanently disabled him from
continuing that employment. Defendant has not shown that any other
gainful occupation is open to plaintiff. His expectancy of life, according
to the standard mortality tables, is approximately thirty-three years.
We are of the opinion that a fair compensation for the damage
suffered by him for his permanent disability is the sum of P2,500, and
that he is also entitled to recover of defendant the additional sum of
P790.25 for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.
The decision of the lower court is reversed, and judgment is
hereby rendered plaintiff for the sum of P3,290.25, and for the costs of
both instances. So ordered.
Arellano, C.J., Torres, Street and Avanceña, JJ., concur.
MALCOLM, J., dissenting:
With one sentence in the majority decision, we are of full
accord, namely, "It may be admitted that had plaintiff waited until the train
had come to a full stop before alighting, the particular injury suffered by
him could not have occurred." With the general rule relative to a
passenger's contributory negligence, we are likewise in full accord,
namely, "An attempt to alight from a moving train is negligence per
se." Adding these two points together, we have the logical result —
theManila Railroad Co. should be absolved from the complaint, and
judgment affirmed.
TRANQUILINO CACHERO, plaintiff and appellant, vs. MANILA
YELLOW TAXICAB CO., INC., defendant-appellant. Bernardino
Guerrero and J. G. Madarang for plaintiff and appellant. Castaño &
Ampil for the defendant and appellant.
1. CONTRACT OF CARRIAGE; BREACH OF; DAMAGES; AGAINST
WHOM THE ACTION MUST BE MAINTAINED TO RECOVER MORAL
DAMAGES. — While under the law, employers are made responsible for
the damages caused by their employees acting within the scope of their
assigned task, plaintiff, in the present case, does not maintain his action
against all the persons who might be liable for the damages caused but on
an alleged breach of contract of carriage and against the defendant
employer alone. However, the defendant taxicab company has not
committed any criminal offense resulting in physical injuries against the
plaintiff. The one that committed the offense against plaintiff is the driver of
defendant's taxicab but he was not made party defendant to the case.
Therefore, plaintiff is not entitled to compensation for moral damages as his
case does not come within the exception of paragraph 1 of Article 2219 of
the Civil Code.
2. ID.; ATTORNEY'S FEES; WHEN MAY BE RECOVERED; CASE AT
BAR. — The present case does not come under any of the exceptions
5
enumerated in Article 2208 of the Civil Code, specially of paragraph 2
thereof, because defendant's failure to meet its responsibility was not the
cause that compelled the plaintiff to litigate or to incur expenses to protect
his interests. The present action was instituted because plaintiff demanded
an exorbitant amount for moral damages and naturally the defendant did
not and could not yield to such demand. This is neither a case that comes
under paragraph 11 of said Article because the Lower Court did not deem it
just and equitable to award any amount for attorney's fees, on which point
this Court agrees.
FELIX, J p:
There is no dispute as to the following facts: on December 13,
1952, Atty. Tranquilino F. Cachero boarded a Yellow Taxicab, with
plate No. 2159-52 driven by Gregorio Mira Abinion and owned by the
Manila Yellow Taxicab Co., Inc. On passing Oroquieta between Doroteo
Jose and Lope de Vega streets, Gregorio Mira Abinion bumped said
taxicab against a Meralco post, No. 1-4/387, with the result that the cab
was badly smashed and the plaintiff fell out of the vehicle to the ground,
suffering thereby physical injuries, slight in nature.
The chauffeur was subsequently prosecuted by the City Fiscal
and on February 26, 1953, upon his plea of guilty the Municipal Court of
Manila sentenced him to suffer 1 month and 1 day of arresto mayor, and
to pay the costs.
On December 17, 1952, Tranquilino F. Cachero addressed a
letter to the Manila Yellow Taxicab Co., Inc., which was followed by
another of January 6, 1953, which reads as follows:
"MANILA, January 6, 1953
The MANILA YELLOW TAXICAB Co., INC.
1338 Arlegui, Manila
Dear Sirs:
As you have been already advised by the
letter dated December 17, 1952, on December 13,
1952, while I was a passenger of your taxicab bearing
plate No. 2159 and driven by your chauffeur Gregorio
Mira and through his negligence and the bad condition
of the said car, he bumped the same against the
pavement on the street (Oroquieta — between Doroteo
Jose and Lope de Vega streets, Manila) and hit the
 6

Meralco post on said street, resulting in the o l

smashing of the said taxicab, and as a result thereof a
I was gravely injured and suffered and is still 2 "
suffering physical, mental and moral damages and 2
(Exhibit K)
not being able to resume my daily calling. 5
6 The Taxicab Co. to avoid expenses and time of litigation
For the said damages, I hereby make a
offered to settle the case amicably with plaintiff but the latter only agreed
demand for the payment of the sum of P79,245.65,
I to reduce his demand to the sum of P72,050.20 as his only basis for
covering expenses for transportation to the hospital
n settlement which, of course, was not accepted by said company. So
for medical treatment, medicines, doctors bills,
t plaintiff instituted this action on February 2, 1953, in the Court of First
actual monetary loss, moral, compensatory and
. Instance of Manila, praying in the complaint that the defendant be
exemplary damages, etc., within 5 days from date of
B condemned to pay him:
receipt hereof.
,
"(a) The sum of P72,050.20, the total sum of
I trust to hear from you on the matter M
the itemized losses and/or damages under paragraph
within the period of 5 days above specified. i
7 of the complaint, with legal interest thereon from the
s
Truly yours, date of the filing of the complaint;
e
( r (b) The sum of 5,000 as attorney's fee; and
S i the costs of the suit; and.
g c
Plaintiff further respectfully prays for such
d o
other and further reliefs as the facts and the law
. r
pertaining to the case may warrant."
) d
T i The defendant answered the complaint setting forth affirmative
r a defenses and a counterclaim for P930 as damages and praying for the
a dismissal of plaintiff's action. After hearing the Court rendered decision
n S only July 20, 1954, the dispositive part of which is as follows:
q t
"IN VIEW OF THE FOREGOING, the Court
u .
hereby renders judgment in favor of the plaintiff and
i ,
against the defendant, sentencing the latter to pay the
l S
former the following: (1) For medicine, doctor's fees for
i t
services rendered and transportation, P700; (2)
n a
professional fee as attorney for the defendant in
o .
Criminal Case No. 364, 'People vs. Manolo Maddela et
C
al.' of the Court of First Instance of Nueva Vizcaya,
F r
P3,000; (3) professional fees as attorney for the
. u
defendant in Civil Case No. 23891 of the Municipal
C z
Court of Manila, 'Virginia Tangulan vs. Leonel da
a ,
Silva,' and for the taking of the deposition of Gabina
c M
Angrepan in a case against the Philippine National
h a
Bank, P200; and (4) moral damages in the amount of
e n
P2,000.
r i

Defendant's counterclaim is hereby dismissed.
Defendant shall also pay the costs."
From this decision both parties appealed to Us, plaintiff
limiting his appeal to the part of the decision which refers to the moral
damages awarded to him which he considered inadequate, and to the
failure of said judgment to grant the attorney's fees asked for in the
prayer of his complaint. Defendant in turn alleges that the trial Court
erred in awarding to the plaintiff the following:
"(1) P700 — for medicine, doctor's fees
and transportation expenses;
(2) P3,000 — as supposedly unearned
full professional fees as attorney for the defendant in
Criminal Case No. 364, 'People vs. Manolo
Maddela et al.';
(3) P200 — as supposedly unearned
professional fees as attorney for the defendant in
Civil Case No. 23891 of the Manila Municipal Court,
'Virginia Tangulanvs. Leonel de Silva', and for
failure to take the deposition of a certain Gabina
Angrepan in an unnamed case; and
(4) P2,000 — as moral damages,
amounting to the grand total of P5,900, these
amounts being very much greater than what plaintiff
deserves."
In connection with his appeal, plaintiff calls attention to the testimonies
of Dr. Modesto S. Purisima and of Dr. Francisco Aguilar, a member of
the staff of the National Orthopedic Hospital, which he considers
necessary as a basis for ascertaining not only the physical sufferings
undergone by him, but also for determining the adequate
compensation for moral damages that he should be awarded by
reason of said accident.
The exact nature of plaintiff's injuries, their degree of
seriousness and the period of his involuntary disability can be
determined by the medical certificate (Exhibit D) issued by the
National Orthopedic Hospital on December 16, 1952, and the
testimonies of Dr. Francisco Aguilar, physician in said hospital, and of
Dr. Modesto Purisima, a private practitioner. The medical certificate
(Exhibit D) lists: (a) a subluxation of the right shoulder joint; (b)
a contusion on the right chest; and (c) a "suspicious fracture" of the
upper end of the right humerus. Dr. Aguilar who issued the medical
certificate admitted, however, with regard to the "suspicious fracture",
that in his opinion with (the aid of) the x-ray there was no fracture.
According to this doctor plaintiff went to the National Orthopedic Hospital
at least six times during the period from December 16, 1952, to April 7,
1953; that he strapped plaintiff's body (see exhibit E), which strap was
not removed until after a period of six weeks had elapsed. Dr. Modesto
Purisima, a private practitioner, testified that
he advised and treated plaintiff from December 14, 1952, to the end of
March (1953). Plaintiff was never hospitalized for treatment of the injuries
he received in said accident.
Counsel for the defendant delves quite extensively on these
injuries. He says in his brief the following:
"Just what is a subluxation? Luxation is
another term for dislocation (Dorland, W.A.N., The
American Illustrated Medical Dictionary (13th ed.), p.
652), and hence, asubluxation is an incomplete or
partial dislocation (Ibid., p. 1115). While a dislocation is
the displacement of a bone or bones from its or their
normal setting (and, therefore, applicable and occurs
only to joints and not to rigid or non-movable parts of
the skeletal system) (Ibid., p. 358; Christopher, F., A
Textbook of Surgery (5th ed.), p. 342), it should be
distinguished from a fracture which is a break ar
rupture in a bone or cartilage, usually due to external
violence (Christopher, F., A Textbook of Surgery (5th
ed.), p. 194; Dorland, W.A.N., The American Illustrated
Medical Dictionary (13th ed.), p. 459). Because, unlike
fractures which may be partial (a crack in the bone) or
total (a complete break in the bone), there can
be no half-way situations with regard to dislocations of
the shoulder joint (the head or ball of the humerus —
the humerus is the bone from the elbow to the shoulder)
must be either inside the socket of the scapula or
shoulder blade (in which case there is no dislocation)
or out of the latter (in which event there is a dislocation),
to denote a condition where due to external violence,
the muscles and ligaments connecting the humerus to
the scapula have subjected to strain intense enough to
produce temporary distension or lessening of their
tautness and consequently resulting in the loosening or
wrenching of the ball of the humerus from its snug fit in
7
the socket of the scapula, by using the terms
subluxation or partial dislocation (as used in the
medical certificate), is to fall into a misnomer — a term
often used by 'chiropractors' and by those who would
want to sound impressive, but generally unfavored by
the medical profession. To describe the above
condition more aptly, the medical profession usually
employs the expression luxatio imperfecta, or, in
simple language, a sprain(Dorland, W.A.N., The
American Illustrated Medical Dictionary (13th ed.), p.
652). The condition we have described is a paraphrase
of the definition of a sprain. Plaintiff suffered this very
injury (a sprained or wrenched shoulder joint) and a
cursory scrutiny of his x- ray plates (Exhibits A and B)
by a qualified orthopedic surgeon or by a layman with a
picture or x-ray plate of a normal shoulder joint (found
in any standard textbook on human anatomy; the one
we used was Scheffer, J.P., Morris' Human Anatomy
(10 ed., p. 194) for comparison will bear out our claim.
Treatment for a sprain is by the use of
adhesive or elastic bandage, elevation of the joint, heat,
effleurage and later massage (Christopher, F., A
Textbook of Surgery (5th ed., p. 116). The treatment
given to the plaintiff was just exactly that Dr. Aguilar
bandaged (strapped) plaintiff's right shoulder and chest
(t.s.n., p. 31) in an elevated position (with the forearm
horizontal to the chest (see photograph, Exhibit E), and
certain vitamins wane prescribed for him (t.s.n., p. 131).
He also underwent massage for some time by Drs.
Aguilar and Purisima. The medicines and
appurtenances to treatment purchased by plaintiff from
the Orthopedic Hospital, Botica Boie and Metro Drug
Store were, by his own admission, adhesive plaster,
bandage, gauze, oil and 'tintura arnica' (t.s.n., p. 3 —
continuation of transcript), and Dr. Purisima also
prescribed 'Numotizin', a heat generating ointment
(t.s.n., p. 23), all of which are indicated for a sprain, and
by their nature, can cure nothing more serious than a
sprain anyway. Fractures and true dislocations cannot
be cured by the kind of treatment and medicines which
plaintiff received. A true dislocation, for instance, is

treated by means of reduction through traction of the
arm until the humeral head returns to the proper
position in the scapular socket (pulling the arm at a
60 degree angle and guiding the ball of the humerus
into proper position, in its socket) while the patient is
under deep anesthesia, and then, completely
immobilizing the part until the injured capsule has
healed (Christopher, F., A Textbook of Surgery, pp.
343 and 344). No evidence was submitted that
plaintiff ever received the latter kind of treatment. Dr.
Purisima even declared that after the plaintiff's first
visit to the Orthopedic Hospital the latter informed
him that there was no fracture or dislocation(t.s.n., p.
26). Dr. Purisima's statement is the truth of the
matter as we have already explained — joints of the
shoulder being only subject to total dislocation (due
to their anatomical design), not to partial ones, and
any injury approximating dislocation but not
completely, it being classified as mere sprains,
slight or bad.
The second and last injury plaintiff
sustained was a contusion. What is a contusion? It
is just a high flown expression for a bruise or the act
of bruising (Dorland, W.A.N., The American
Illustrated Medical Dictionary (13th ed., p.
290). No further discussion need be made on this
particular injury since the nature of a bruise is of
common knowledge (it's a bit uncomfortable but not
disabling unless it occurs on movable parts like the
fingers or elbow, which is not the case herein having
occurred in the right chest) and the kind of medical
treatment or help it deserves is also well known."
(pp. 10-14, defendant-appellant's brief).
The trial Judge undoubtedly did not give much value to the
testimonies of the doctors when in the statement of facts made in his
decision he referred to the physical injuries received by the plaintiff as
slight in nature and the latter is estopped from discussing the same in
order to make them appear as serious, because in the statement of
facts made in his brief as appellant, he says the following:
"The facts of the case as found by the
lower court in its decision, with the permission of this
Honorable Court, we respectfully quote them
hereunder as ourSTATEMENT OF FACTS for the
purpose of this appeal."
Before entering into a discussion of the merits of plaintiff's
appeal, We Will say a few words as to the nature of the action on which
his demand for damages is predicated.
"The nature of an action as in contract or in
tort is determined from the essential elements of the
complaint, taken as a whole, in the case of doubt a
construction to sustain the action being given to it.
While the prayer for relief or measure of
damages sought does not necessarily determine the
character of the action, it may be material in the
determination of the question and therefore entitled to
consideration and in cases of doubt will often
determine the character of the action and indeed there
are actions whose character is necessarily determined
thereby." (1 C.J.S. 1100)
A mere perusal of plaintiff's complaint will show that his action
against the defendant is predicated on an alleged breach of contract of
carriage, i.e., the failure of the defendant to bring him "safely and without
mishaps" to his destination, and it is to be noted that the chauffeur of
defendant's taxicab that plaintiff used when he received the injuries
involved herein, Gregorio Mira, has not even been made a party
defendant to this case.
Considering, therefore, the nature of plaintiff's action in this
case, is he entitled to compensation for moral damages? Article 2219 of
the Civil Code says the following:
"ART. 2219. Moral damages may be
recovered in the following and analogous cases:
(1) A criminal offense resulting in physical
injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other
lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
8
(6) Illegal search;
(7) Libel, slander or any other form of
defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles
21, 26, 27, 28, 29, 30, 32, 34 and 35.
xxx xxx xxx."
Of the cases enumerated in the just quoted Article 2219 only
the first two may have any bearing on the case at bar. We find, however,
with regard to the first that the defendant herein has not committed in
connection with this case any "criminal offense resulting in physical
injuries". The one that committed the offense against the plaintiff is
Gregorio Mira, and that is why he has been already prosecuted and
punished therefor. Although (a) owners and managers of an
establishment or enterprise are responsible for damages caused by their
employees in the service of the branches in which the latter are employed
or on the occasion of their functions; (b) employers are likewise liable for
damages caused by their employees and household helpers acting
within the scope of their assigned task (Article 2180 of the Civil Code);
and (c) employers and corporations engaged in any kind of industry are
subsidiarily civilly liable for felonies committed by their employees in the
discharge of their duties (Art. 103, Revised Penal Code), plaintiff herein
does not maintain this action under the provisions of any of the articles of
the codes just mentioned and against all the persons who might be liable
for the damages caused, but as a result of an admitted breach of contract
of carriage and against the defendant employer alone. We, therefore,
hold that the case at bar does not come within the exception of paragraph
1, Article 2219 of the Civil Code.
The present complaint is not based either on a "quasi delict
causing physical injuries" (Art. 2219, par. 2, of the Civil Code). From the
report of the Code Commission on the new Civil Code We copy the
following:
"A question of nomenclature confronted the
Commission. After a careful deliberation, it was agreed
to use the term 'quasi delict' for those obligation which
agreed to not arise from law, contracts, quasi-
contracts, or criminal offenses.They are known in
Spanish legal treatises as 'culpa
 9

aquiliana','culpa-extra-contractual' or 'cuasi- expression, that article relates only to CULPA (10) When at least double judicial costs are
delitos'. The phrase 'culpa-extra-contractual' or its AQUILIANA and not to CULPA CONTRACTUAL." awarded;
translation 'extra-contractual or penal obligation.
The decisions in the cases of Castro vs. Acro Taxicab (82 Phil., (11) In any other case where the court
'Aquilian fault' might have been selected, but it was
359, 46 Off. Gaz., No. 5, p. 2023); Lilius et al. vs. Manila Railroad, (59 deems it just and equitable that attorney's fees and
thought inadvisable to refer to so ancient a law as
Phil. 758) and others, wherein moral damages were awarded to the expenses of litigation should be recovered.
the 'Lex Aquilia'. So 'quasi-delicts' was chosen,
plaintiffs, are not applicable to the case at bar because said decisions
which more nearly corresponds to the Roman Law In all cases, the attorney's fees and expenses of litigation must
were rendered before the effectivity of the new Civil Code (August 30,
classification of obligations, and is in harmony with be reasonable."
1950) and for the further reason that the complaints filed therein were
the nature of this kind of liability."
based on different causes of action. The present case does not come under any of the exceptions
"The Commission also thought of the enumerated in the preceding article, specially of paragraph 2 thereof,
In view of the foregoing the sum of P2,000 awarded as moral
possibility of adopting the word 'tort' from because defendant's failure to meet its responsibility was not the cause
damages by the trial Court has to be eliminated, for under the law it is not
Anglo-American law. But 'tort' under that system is that compelled the plaintiff to litigate or to incur expenses to protect his
a compensation awardable in a case like the one at bar.
much broader than the Spanish-Philippine concept interests. The present action was instituted because plaintiff demanded
of obligations arising from non-contractual an exorbitant a mount for moral damages (P60,000) and naturally the
negligence. 'Tort' in Anglo-American jurisprudence defendant did not and could not yield to such demand. This is neither a
As to plaintiff's demand for P5,000 as attorney's fees, the Civil
includes not only negligence, but also intentional case that comes under paragraph 11 of Article 2208 because the Lower
Code provides the following:
criminal act, such as assault and battery, false Court did not deem it just and equitable to award any amount for
imprisonment and deceit. In the general plan of the "ART. 2208. In the absence of stipulation, attorney's fees. As We agree with the trial Judge on this point, We cannot
Philippine legal system, intentional and malicious attorney's fees and expenses of litigation, other than declare that he erred for not a warding to plaintiff any such fees in this
acts are governed by the Penal Code, although judicial costs, cannot be recovered, except: case.
certain exceptions are made in the Project." (Report
(1) When exemplary damages are awarded; Coming now to the appeal of the defendant, the Court, after
of the Code Commission, pp. 161-162).
due consideration of the evidence appearing on record:
(2) When the defendant's act or omission
In the case of Cangco vs. Manila Railroad, 38 Phil. 768, We
has compelled the plaintiff to litigate with third persons (1) Approves the award of P700 for medicine, doctors' fees
established the distinction between obligation derived from negligence
or to incur expenses to protect his interest; and transportation expenses;
and obligation as a result of a breach of a contract. Thus, We said:
(3) In criminal cases of malicious (2) Reduces the award of P3,000 as attorney's fees to the sum
"It is important to note that the foundation
prosecution against the plaintiff; of P2,000, as Manolo Maddela, defendant in Criminal Case No. 364 of
of the legal liability of the defendant is the contract of
the Court of First Instance of Nueva Vizcaya testified that he has already
carriage, and that the obligation to respond for the (4) In case of a clearly unfounded civil action
paid to plaintiff part of the latter's fees of P3,000, the amount of which was
damage which plaintiff has suffered arises, if at all, or proceeding against the plaintiff;
not disclosed, though it was incumbent upon the plaintiff to establish how
from the breach of that contact by reason of the
(5) Where the defendant acted in gross and much he had been paid of said fees;
failure of defendant to exercise due care in its
evident bad faith in refusing to satisfy the plaintiff's
performance. That is to say,its liability is direct and (3) Approves the award of P200 as unearned professional fees
plainly valid, just and demandable claim;
immediate, differing essentially in the legal as attorney for the defendant in Civil Case No. 238191 of the Municipal
viewpoint from that presumptive responsibility for (6) In actions for legal support; Court of Manila whom plaintiff was unable to represent, and for the
the negligence of its servants, imposed by Article latter's failure to take the deposition of one Agripina Angrepan due to the
(7) In actions for the recovery of wages of
1903 of the Civil Code (Art. 2180 of the new), which automobile accident referred to in this case.
household helpers, laborers and skilled workers;
can be rebutted by proof of the exercise of due care
Before closing this decision We deem it convenient to quote
in their selection or supervision. Article 1903 is not (8) In actions for indemnity under workmen's
the following passage of defendant's brief as appellant:
applicable to obligations arising EX compensation and employer's liability laws;
CONTRACTU, but only to extra- contractual "Realizing its obligation under its contract of
(9) In a separate civil action to recover civil
obligations — or to use the technical form of carriage with the plaintiff, and because the facts of the
liability arising from a crime;

case, as have been shown, mark it as more proper
for the Municipal Court only, the defendant, to avoid
the expense and time of litigation, offered to settle
the case amicably with plaintiff, but the latter refused
and insisted on his demand for P72,050.20 (Exhibit
K) as the only basis for settlement, thus adding a
clearly petty case to the already overflowing desk of
the Honorable Members of this Court.
We admire and respect at all times a man
for standing up and fighting for his rights, and when
said right consists in injuries sustained due to a
breach of a contract of carriage with us, sympathy
and understanding are added thereto. But when a
person starts demanding P2,050.20 for a solitary
bruise and sprain, injuries for which the trial court,
even at its generous although erroneous best, could
only grant P5,900, then respect and sympathy give
way to something else. It is time to fight, for, in our
humble opinion, there is nothing more loathsome
nor truly worthy of condemnation than one who uses
his injuries for other purposes than just rectification.
If plaintiff's claim is granted, it would be a blessing,
not a misfortune, to be injured." (p. 34-35)
This case was instituted by a lawyer who, as an officer of the
courts, should be the first in helping Us in the administration of justice,
and after going over the record of this case, we do not hesitate to say
that the demand of P72,050.20 for a subluxation of the right humerus
bone and an insignificant contusion in the chest, has not even the
semblance of reasonableness. As a matter of fact, Dr. Aguilar himself
said that the x-ray plates (Exhibits A, B and C) "did not show anything
significant except that it shows a slight subluxation of the right
shoulder, and that there is a suspicious fracture", which ultimately he
admitted not to exist. The plaintiff himself music have felt embarrassed
by his own attitude when after receiving defendant's brief as appellant,
he makes in his brief as appellee the categorical statement that he
"DOES NOT NOW INSIST NOR PRETEND IN THE LEAST to collect
from the defendant all the damages he had claimed in his complaint,
but instead he is submitting his case to the sound discretion of the
Honorable Court for the award of a reasonable and equitable
damages allowable by law, to compensate the plaintiff of the suffering
and looses he had undergone and incurred because of the accident
oftentimes mentioned in this brief in which plaintiff was injured" (p.
17-18). This acknowledgment comes too late, for plaintiff has already
deprived the Court of Appeals of the occasion to exercise its appellate
jurisdiction over this case which he recklessly dumped to this Court. We
certainly cannot look with favor at this attitude of plaintiff.
Wherefore, the decision appealed from is hereby modified by
reducing the amount awarded as unearned professional fees from
P3,000 to P2,000 and by eliminating the moral damages of P2,000
awarded by the Lower Court to the plaintiff. Said decision is in all other
respects affirmed, without pronouncement as to costs. It is so ordered.
||LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT
SECURITY AGENCY, respondents. Office of the Government Corporate
Counsel for petitioners.
Mario F. Estayan for Prudent Security Agency. Arias Law Offices for
M. Navidad and the Heirs of Navidad
SYNOPSIS On 14 October 1993, Nicanor Navidad, then drunk,
entered the EDSA LRT station after purchasing a "token" (representing
payment of the fare). Junelito Escartin, the security guard assigned to the area,
approached Navidad. A misunderstanding or an altercation between the two
apparently ensued that led to a fist fight. At the exact moment that Navidad fell,
an LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad
was struck by the moving train, and he was killed instantaneously. Private
respondent Marjorie Navidad, the widow of Nicanor, along with her children,
filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the
LRTA, the Metro Transit Organization, Inc. and Prudent Security Agency for
the death of her husband. The trial court ruled in favor of private respondent by
awarding actual, moral and compensatory damages. Prudent Security Agency
appealed to the Court of Appeals. The appellate court exonerated Prudent
from any liability for the death of Nicanor and instead held LRTA and Roman
jointly and severally liable. In exempting Prudent from liability, the appellate
court stressed that there was nothing to link the security agency to the death of
Navidad. It ruled that Navidad failed to show that Escartin inflicted fist blows
upon the victim and the evidence merely established the fact of death of
Navidad by reason of his having been hit by the train owned and managed by
the LRTA and operated at the time by Roman. The appellate court faulted
petitioners for their failure to present expert evidence to establish the fact that
the application of emergency brakes could not have stopped the train. Hence,
the present petition for review. IcTEaC
The Supreme Court affirmed the decision of the Court of Appeals. If
there is any liability that could be attributed to Prudent, it could only be for tort
10
under the provisions of Article 2176 and related provisions, in conjunction with
Article 2180, of the Civil Code. In the absence of satisfactory explanation by
the carrier on how the accident occurred, which petitioners, according to the
appellate court, have failed to show, the presumption would be that it has been
at fault, an exception from the general rule that negligence must be proved.
Regrettably for LRT, as well as the surviving spouse and heirs of the late
Nicanor Navidad, the Court is concluded by the factual finding of the Court of
Appeals that there was nothing to link Prudent to the death of Nicanor Navidad,
for the reason that the negligence of its employee, Escartin, has not been duly
proven. The Court also absolved petitioner Rodolfo Roman, there
being no showing that he is guilty of any culpable act or omission and also for
the reason that the contractual tie between the LRT and Navidad is not itself a
juridical relation between the latter and Roman; thus, Roman can be made
liable only for his own fault or negligence. The Court also ruled that the award
of nominal damages, in addition to actual damages, is untenable stressing that
nominal damages are adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him. It is also an established rule that nominal damages cannot
co-exist with compensatory damages.
SYLLABUS1.CIVIL LAW; COMMON CARRIERS; LIABILITY FOR DEATH
OR INJURY TO PASSENGERS. — The law requires common carriers to carry
passengers safely using the utmost diligence of very cautious persons with
due regard for all circumstances. Such duty of a common carrier to provide
safety to its passengers so obligates it not only during the course of the trip but
for so long as the passengers are within its premises and where they ought to
be in pursuance to the contract of carriage. The statutory provisions render a
common carrier liable for death of or injury to passengers (a) through
the negligence or willful acts of its employees or b) on account of willful acts or
negligence of other passengers or of strangers if the common carrier's
employees through the exercise of due diligence could have prevented or
stopped the act or omission. In case of such death or injury, a carrier is
presumed to have been at fault or been negligent, and by simple proof of injury,
the passenger is relieved of the duty to still establish the fault or negligence of
the carrier or of its employees and the burden shifts upon the carrier to prove
that the injury is due to an unforeseen event or to force majeure. In the
absence of satisfactory explanation by the carrier on how the accident
occurred, which petitioners, according to the appellate court, have failed to
show, the presumption would be that it has been at fault, an exception from the
general rule that negligence must be proved.

2.ID.; EXTRA CONTRACTUAL OBLIGATIONS;
QUASI-DELICTS; AN EMPLOYER CANNOT BE HELD LIABLE FOR
DAMAGES ABSENT PROOF OF FAULT OR NEGLIGENCE ON THE
PART OF ITS EMPLOYEE; CASE AT BAR. — The foundation of LRTA's
liability is the contract of carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its failure to exercise the
high diligence required of the common carrier. In the discharge of its
commitment to ensure the safety of passengers, a carrier may choose to
hire its own employees or avail itself of the services of an outsider or an
independent firm to undertake the task. In either case, the common carrier
is not relieved of its responsibilities under the contract of carriage. Should
Prudent be made likewise liable? If at all, that liability could only be for tort
under the provisions of Article 2176 and related provisions, in conjunction
with Article 2180, of the Civil Code. The premise, however, for the
employer's liability is negligence or fault on the part of the employee. Once
such fault is established, the employer can then be made liable on the basis
of the presumption juris tantum that the employer failed to
exercise diligentissimi patris familias in the selection and supervision of its
employees. The liability is primary and can only be negated by showing due
diligence in the selection and supervision of the employee, a factual matter
that has not been shown. Absent such a showing, one might ask further,
how then must the liability of the common carrier, on the one hand, and an
independent contractor, on the other hand, be described? It would be
solidary. A contractual obligation can be breached by tort and when the
same act or omission causes the injury, one resulting in culpa
contractual and the other in culpa aquiliana, Article 2194 of the Civil Code
can well apply. In fine, a liability for tort may arise even under a contract,
where tort is that which breaches the contract. Stated differently, when an
act which constitutes a breach of contract would have itself constituted the
source of a quasi-delictual liability had no contract existed between the
parties, the contract can be said to have been breached by tort, thereby
allowing the rules on tort to apply. Regrettably for LRT, as well as perhaps
the surviving spouse and heirs of the late Nicanor Navidad, this Court is
concluded by the factual finding of the Court of Appeals that "there is
nothing to link (Prudent) to the death of Nicanor (Navidad), for the reason
that the negligence of its employee, Escartin, has not been duly
proven . . . ." This finding of the appellate court is not without substantial
justification in our own review of the records of the case. There being,
similarly, no showing that petitioner Rodolfo Roman himself is guilty of any
culpable act or omission, he must also be absolved from liability. Needless
to say, the contractual tie between the LRT and Navidad is not itself a
juridical relation between the latter and Roman; thus, Roman can be made
liable only for his own fault or negligence.
11
3.ID.; DAMAGES; AWARD OF NOMINAL DAMAGES IN ADDITION Navidad had failed to prove that Escartin was negligent in his assigned task.
TO ACTUAL DAMAGES IS UNTENABLE; NOMINAL DAMAGES CANNOT On 11 August 1998, the trial court rendered its decision; it adjudged:
CO-EXIST WITH COMPENSATORY DAMAGES. — The award of nominal
damages in addition to actual damages is untenable. Nominal damages are "WHEREFORE, judgment is hereby
adjudicated in order that a right of the plaintiff, which has been violated or rendered in favor of the plaintiffs and against the
invaded by the defendant, may be vindicated or recognized, and not for the defendants Prudent Security and Junelito Escartin
purpose of indemnifying the plaintiff for any loss suffered by him. It is an ordering the latter to pay jointly and severally the
established rule that nominal damages cannot co-exist with compensatory plaintiffs the following:
damages. ISAcHD
"a)1)Actual damages of P44,830.00;
VITUG, J p:
2)Compensatory damages of
P443,520.00;
The case before the Court is an appeal from the decision and
resolution of the Court of Appeals, promulgated on 27 April 2000 and 10 3)Indemnity for the death of
October 2000, respectively, in CA-G.R. CV No. 60720, entitled "Marjorie Nicanor Navidad in the
Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et al.," sum of P50,000.00;
which has modified the decision of 11 August 1998 of the Regional Trial Court,
Branch 266, Pasig City, exonerating Prudent Security Agency (Prudent) from "b)Moral damages of P50,000.00;
liability and finding Light Rail Transit Authority (LRTA) and Rodolfo Roman
"c)Attorney's fees of P20,000;
liable for damages on account of the death of Nicanor Navidad.
"d)Costs of suit.
On 14 October 1993, about half an hour past seven o'clock in the
evening, Nicanor Navidad, then drunk, entered the EDSA LRT station after "The complaint against defendants LRTA
purchasing a "token" (representing payment of the fare). While Navidad was and Rodolfo Roman are dismissed for lack of merit.
standing on the platform near the LRT tracks, Junelito Escartin, the security
guard assigned to the area approached Navidad. A misunderstanding or an "The compulsory counterclaim of LRTA and
altercation between the two apparently ensued that led to a fist Roman are likewise dismissed." 1
fight. No evidence, however, was adduced to indicate how the fight started or
who, between the two, delivered the first blow or how Navidad later fell on the Prudent appealed to the Court of Appeals. On 27 August 2000, the
LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by appellate court promulgated its now assailed decision exonerating Prudent
petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving from any liability for the death of Nicanor Navidad and, instead, holding the
train, and he was killed instantaneously. LRTA and Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is
On 08 December 1994, the widow of Nicanor, herein respondent
hereby MODIFIED, by exonerating the appellants from
Marjorie Navidad, along with her children, filed a complaint for damages
any liability for the death of Nicanor Navidad, Jr.
against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit
Instead, appellees Rodolfo Roman and the Light Rail
Organization, Inc. (Metro Transit), and Prudent for the death of her husband.
Transit Authority (LRTA) are held liable for his death
LRTA and Roman filed a counterclaim against Navidad and a cross-claim
and are hereby directed to pay jointly and severally to
against Escartin and Prudent. Prudent, in its answer, denied liability and
the plaintiffs-appellees, the following amounts:
averred that it had exercised due diligence in the selection and supervision of
its security guards.
a)P44,830.00 as actual damages;
The LRTA and Roman presented their evidence while Prudent and
b)P50,000.00 as nominal damages;
Escartin, instead of presenting evidence, filed a demurrer contending that
 12

c)P50,000.00 as moral damages; Petitioners would contend that the appellate court ignored the "This liability of the common carriers does
evidence and the factual findings of the trial court by holding them liable on the not cease upon proof that they exercised all the
d)P50,000.00 as indemnity for the death basis of a sweeping conclusion that the presumption of negligence on the part diligence of a good father of a family in the selection
of the deceased; and of a common carrier was not overcome. Petitioners would insist that Escartin's and supervision of their employees."
assault upon Navidad, which caused the latter to fall on the tracks, was an act
e)P20,000.00 as and for attorney's "Article 1763.A common carrier is
of a stranger that could not have been foreseen or prevented. The LRTA
fees." 2 responsible for injuries suffered by a passenger on
would add that the appellate court's conclusion on the existence of an
employer-employee relationship between Roman and LRTA lacked basis account of the willful acts or negligence of other
The appellate court ratiocinated that while the deceased might
because Roman himself had testified being an employee of Metro Transit and passengers or of strangers, if the common carrier's
not have then as yet boarded the train, a contract of carriage theretofore
not of the LRTA. employees through the exercise of the diligence of a
had already existed when the victim entered the place where passengers
good father of a family could have prevented or
were supposed to be after paying the fare and getting the corresponding
Respondents, supporting the decision of the appellate court, stopped the act or omission."
token therefor. In exempting Prudent from liability, the court stressed that
contended that a contract of carriage was deemed created from the moment
there was nothing to link the security agency to the death of Navidad. It said The law requires common carriers to carry passengers safely using
Navidad paid the fare at the LRT station and entered the premises of the latter,
that Navidad failed to show that Escartin inflicted fist blows upon the victim the utmost diligence of very cautious persons with due regard for all
entitling Navidad to all the rights and protection under a contractual relation,
and the evidence merely established the fact of death of Navidad by reason circumstances. 5 Such duty of a common carrier to provide safety to its
and that the appellate court had correctly held LRTA and Roman liable for the
of his having been hit by the train owned and managed by the LRTA and passengers so obligates it not only during the course of the trip but for so long
death of Navidad in failing to exercise extraordinary diligence imposed upon a
operated at the time by Roman. The appellate court faulted petitioners for as the passengers are within its premises and where they ought to be in
common carrier.
their failure to present expert evidence to establish the fact that the pursuance to the contract of carriage. 6 The statutory provisions render a
application of emergency brakes could not have stopped the train. Law and jurisprudence dictate that a common carrier, both from the common carrier liable for death of or injury to passengers (a) through
nature of its business and for reasons of public policy, is burdened with the the negligence or wilful acts of its employees or b) on account of wilful acts or
The appellate court denied petitioners' motion for reconsideration
duty of exercising utmost diligence in ensuring the safety of negligence of other passengers or of strangers if the common carrier's
in its resolution of 10 October 2000.
passengers. 4 The Civil Code, governing the liability of a common carrier for employees through the exercise of due diligence could have prevented or
In their present recourse, petitioners recite alleged errors on the death of or injury to its passengers, provides: stopped the act or omission. 7 In case of such death or injury, a carrier is
part of the appellate court; viz: presumed to have been at fault or been negligent, and 8 by simple proof of
"Article 1755.A common carrier is bound to injury, the passenger is relieved of the duty to still establish the fault or
"I. carry the passengers safely as far as human care and negligence of the carrier or of its employees and the burden shifts upon the
foresight can provide, using the utmost diligence of carrier to prove that the injury is due to an unforeseen event or to force
THE HONORABLE COURT OF APPEALS very cautious persons, with a due regard for all the majeure. 9 In the absence of satisfactory explanation by the carrier on how the
GRAVELY ERRED BY DISREGARDING THE circumstances. accident occurred, which petitioners, according to the appellate court, have
FINDINGS OF FACTS BY THE TRIAL COURT. failed to show, the presumption would be that it has been at fault, 10 an
"Article 1756.In case of death of or injuries to
exception from the general rule that negligence must be proved. 11
"II. passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they The foundation of LRTA's liability is the contract of carriage and its
THE HONORABLE COURT OF APPEALS prove that they observed extraordinary diligence as obligation to indemnify the victim arises from the breach of that contract by
GRAVELY ERRED IN FINDING THAT prescribed in Articles 1733 and 1755." reason of its failure to exercise the high diligence required of the common
PETITIONERS ARE LIABLE FOR THE DEATH OF
carrier. In the discharge of its commitment to ensure the safety of passengers,
NICANOR NAVIDAD, JR. "Article 1759.Common carriers are liable for
a carrier may choose to hire its own employees or avail itself of the services of
the death of or injuries to passengers through the
"III. an outsider or an independent firm to undertake the task. In either case, the
negligence or willful acts of the former's employees,
common carrier is not relieved of its responsibilities under the contract of
although such employees may have acted beyond the
THE HONORABLE COURT OF APPEALS carriage.
scope of their authority or in violation of the orders of
GRAVELY ERRED IN FINDING THAT RODOLFO
the common carriers. Should Prudent be made likewise liable? If at all, that liability could
ROMAN IS AN EMPLOYEE OF LRTA." 3
only be for tort under the provisions of Article 2176 12 and related provisions,

in conjunction with Article 2180, 13 of the Civil Code. The premise,
however, for the employer's liability is negligence or fault on the part of the
employee. Once such fault is established, the employer can then be made
liable on the basis of the presumption juris tantum that the employer failed
to exercise diligentissimi patris familias in the selection and supervision of
its employees. The liability is primary and can only be negated by showing
due diligence in the selection and supervision of the employee, a factual
matter that has not been shown. Absent such a showing, one might ask
further, how then must the liability of the common carrier, on the one hand,
and an independent contractor, on the other hand, be described? It would
be solidary. A contractual obligation can be breached by tort and when the
same act or omission causes the injury, one resulting in culpa
contractual and the other in culpa aquiliana, Article 2194 14 of the Civil
Code can well apply. 15 In fine, a liability for tort may arise even under a
contract, where tort is that which breaches the contract. 16 Stated
differently, when an act which constitutes a breach of contract would have
itself constituted the source of a quasi-delictual liability had no contract
existed between the parties, the contract can be said to have been
breached by tort, thereby allowing the rules on tort to apply. 17
Regrettably for LRT, as well as perhaps the surviving spouse and
heirs of the late Nicanor Navidad, this Court is concluded by the factual
finding of the Court of Appeals that "there is nothing to link (Prudent) to the
death of Nicanor (Navidad), for the reason that the negligence of its
employee, Escartin, has not been duly proven . . . ." This finding of the
appellate court is not without substantial justification in our own review of
the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman
himself is guilty of any culpable act or omission, he must also be absolved
from liability. Needless to say, the contractual tie between the LRT and
Navidad is not itself a juridical relation between the latter and Roman; thus,
Roman can be made liable only for his own fault or negligence.
The award of nominal damages in addition to actual damages is
untenable. Nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him. 18 It is an established rule that nominal
damages cannot co-exist with compensatory damages. 19
WHEREFORE, the assailed decision of the appellate court is
AFFIRMED with MODIFICATION but only in that (a) the award of nominal
damages is DELETED and (b) petitioner Rodolfo Roman is absolved from
liability. No costs. DaAIHC
SO ORDERED.
|||
PEDRO ELCANO and PATRICIA ELCANO, in their
capacity as Ascendants of Agapito Elcano,
deceased, plaintiffs-appellants, vs. REGINALD HILL,
minor, and MARVIN HILL, as father and Natural
Guardian of said minor, defendants-appellees. Cruz
& Avecilla for appellants. Marvin R. Hill &
Associates for appellees.
BARREDO, J p:
Appeal from the order of the Court of First Instance of Quezon City dated
January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald
Hill et al. dismissing, upon motion to dismiss of defendants, the complaint of
plaintiffs for recovery of damages from defendant Reginald Hill, a minor,
married at the time of the occurrence, and his father, the defendant Marvin Hill,
with whom he was living and getting subsistence, for the killing by Reginald of
the son of the plaintiffs, named Agapito Elcano, of which, when criminally
prosecuted, the said accused was acquitted on the ground that his act was not
criminal, because of "lack of intent to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
"1. The present action is not only against but a violation
of section 1, Rule 107, which is now Rule III, of the
Revised Rules of Court;
"2. The action is barred by a prior judgment which is
now final and or in res-adjudicata;
"3. The complaint had no cause of action against
defendant Marvin Hill, because he was relieved as
guardian of the other defendant through emancipation
by marriage." (P. 23, Record [p. 4, Record on Appeal.])
13
was first denied by the trial court. It was only upon motion for
reconsideration of the defendants of such denial, reiterating the above
grounds that the following order was issued:
"Considering the motion for reconsideration filed by the
defendants on January 14, 1965 and after thoroughly
examining the arguments therein contained, the Court
finds the same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8,
1964 is hereby reconsidered by ordering the dismissal
of the above entitled case.
"SO ORDERED.
"Quezon City, Philippines, January 29, 1965." (p. 40,
Record [p. 21, Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are
presenting for Our resolution the following assignment of errors:
"THE LOWER COURT ERRED IN DISMISSING THE
CASE BY UPHOLDING THE CLAIM OF
DEFENDANTS THAT —
I
"THE PRESENT ACTION IS NOT ONLY AGAINST
BUT ALSO A VIOLATION OF SECTION 1, RULE 107,
NOW RULE 111, OF THE REVISED RULES OF
COURT, AND THAT SECTION 3(c) OF RULE 111,
RULES OF COURT IS INAPPLICABLE;
II
"THE ACTION IS BARRED BY A PRIOR JUDGMENT
WHICH IS NOW FINAL OR RES-ADJUDICATA;
III
"THE PRINCIPLES OF QUASI-DELICTS, ARTICLES
2176 TO 2194 OF THE CIVIL CODE, ARE
INAPPLICABLE IN THE INSTANT CASE; and
IV

"THAT THE COMPLAINT STATES NO CAUSE OF
ACTION AGAINST DEFENDANT MARVIN HILL
BECAUSE HE WAS RELIEVED AS GUARDIAN OF
THE OTHER DEFENDANT THROUGH
EMANCIPATION BY MARRIAGE." (page 4,
Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants,
defendant-appellee Reginald Hill was prosecuted criminally in Criminal
Case No. 5102 of the Court of First Instance of Quezon City. After due trial,
he was acquitted on the ground that his act was not criminal because of
"lack of intent to kill, coupled with mistake." Parenthetically, none of the
parties has favored Us with a copy of the decision of acquittal, presumably
because appellants do not dispute that such indeed was the basis stated in
the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the death
of their son, the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues
presented for Our resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald
in the criminal case wherein the action for civil liability was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code be applied
against Atty. Hill, notwithstanding the undisputed fact that at the time of the
occurrence complained of, Reginald, though a minor, living with and getting
subsistence from his father, was already legally married?
The first issue presents no more problem than the need for a reiteration and
further clarification of the dual character, criminal and civil, of fault or
negligence as a source of obligation which was firmly established in this
jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court
postulated, on the basis of a scholarly dissertation by Justice Bocobo on the
nature of culpa aquiliana in relation to culpa criminal or delito and
mere culpa or fault, with pertinent citation of decisions of the Supreme
Court of Spain, the works of recognized civilians, and earlier jurisprudence
of our own, that the same given act can result in civil liability not only under
the Penal Code but also under the Civil Code. Thus, the opinion holds:
"The above case is pertinent because it shows that
the same act may come under both the Penal Code
and the Civil Code. In that case, the action of the
agent was unjustified and fraudulent and therefore
could have been the subject of a criminal action. And
yet, it was held to be also a proper subject of a civil
action under article 1902 of the Civil Code. It is also to
be noted that it was the employer and not the
employee who was being sued." (pp. 615-616, 73
Phil.) 1
"It will be noticed that the defendant in the above case
could have been prosecuted in a criminal case
because his negligence causing the death of the child
was punishable by the Penal Code. Here is therefore a
clear instance of the same act of negligence being a
proper subject matter either of a criminal action with its
consequent civil liability arising from a crime or of an
entirely separate and independent civil action for fault
or negligence under article 1902 of the Civil Code.
Thus, in this jurisdiction, the separate individuality of
a cuasi-delito or culpa aquiliana under the Civil Code
has been fully and clearly recognized, even with regard
to a negligent act for which the wrongdoer could have
been prosecuted and convicted in a criminal case and
for which, after such a conviction, he could have been
sued for this civil liability arising from his crime." (p. 617,
73 Phil.) 2
"It is most significant that in the case just cited, this
Court specifically applied article 1902 of the Civil Code.
It is thus that although J. V. House could have been
criminally prosecuted for reckless or simple negligence
and not only punished but also made civilly liable
because of his criminal negligence, nevertheless this
Court awarded damages in an independent civil action
for fault or negligence under article 1902 of the Civil
Code." (p. 618, 73 Phil.) 3
"The legal provisions, authors, and cases already
invoked should ordinarily be sufficient to dispose of this
case. But inasmuch as we are announcing doctrines
that have been little understood, in the past, it might not
be inappropriate to indicate their foundations.
"Firstly, the Revised Penal Code in articles 365
punishes not only reckless but also simple negligence.
If we were to hold that articles 1902 to 1910 of the Civil
14
Code refer only to fault or negligence not punished by
law, accordingly to the literal import of article 1093 of
the Civil Code, the legal institution of culpa
aquilina would have very little scope and application in
actual life. Death or injury to persons and damage to
property through any degree of negligence — even the
slightest — would have to be indemnified only through
the principle of civil liability arising from a crime. In such
a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to
impute to the lawmaker any intention to bring about a
situation to absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will
not use the literal meaning of the law to smother and
render almost lifeless a principle of such ancient origin
and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil
Code.
"Secondly, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required,
while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages.
There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but
can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made
responsible in a civil action under articles 1902 to 1910
of the Civil Code. Otherwise, there would be many
instances of unvindicated civil wrongs. Ubi jus ibi
remedium." (p. 620, 73 Phil.)
"Fourthly, because of the broad sweep of the
provisions of both the Penal Code and the Civil Code
on this subject, which has given rise to the overlapping
or concurrence of spheres already discussed, and for
lack of understanding of the character and efficacy of
the action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the
civil responsibility arising from a crime, forgetting that
there is another remedy, which is by invoking articles

1902-1910 of the Civil Code. Although this habitual
method is allowed by our laws, it has nevertheless
rendered practically useless and nugatory the more
expeditious and effective remedy based on culpa
aquiliana or culpa extra-contractual. In the present
case, we are asked to help perpetuate this usual
course. But we believe it is high time we pointed out
to the harms done by such practice and to restore
the principle of responsibility for fault or negligence
under articles 1902 et seq. of the Civil Code to its
full rigor. It is high time we caused the stream
of quasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be
diverted into that of a crime under the Penal Code.
This will, it is believed, make for the better
safeguarding or private rights because it
re-establishes an ancient and additional remedy,
and for the further reason that an independent civil
action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely
directed by the party wronged or his counsel, is
more likely to secure adequate and efficacious
redress." (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the
foregoing excerpts from the opinion in Garcia - that the concurrence of the
Penal Code and the Civil Code therein referred to contemplate only acts of
negligence and not intentional voluntary acts — deeper reflection would
reveal that the thrust of the pronouncements therein is not so limited, but
that in fact it actually extends to fault or culpa. This can be seen in the
reference made therein to the Sentence of the Supreme Court of Spain of
February 14, 1919, supra, which involved a case of fraud or estafa, not a
negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here
at the time of Garcia, provided textually that obligations "which are derived
from acts or omissions in which fault or negligence, not punishable by law,
intervene shall be the subject of Chapter II, Title XV of this book (which
refers to quasi-delicts.)" And it is precisely the underline qualification, "not
punishable by law", that Justice Bocobo emphasized could lead to an
undesirable construction or interpretation of the letter of the law that "killeth,
rather than the spirit that giveth life" hence, the ruling that "(W)e will not use
the literal meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown development asculpa
aquiliana or cuasi-delito, which is conserved and made enduring in articles
1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of the new
Civil Code, it is to be noted that the said Code, which was enacted after the
Garcia doctrine, no longer uses the term, "not punishable by law," thereby
making it clear that the concept of culpa aquiliana includes acts which are
criminal in character or in violation of the penal law, whether voluntary or
negligent. Thus, the corresponding provisions to said Article 1093 in the new
code, which is Article 1162, simply says, "Obligations derived
from quasi-delicts shall be governed by the provisions of Chapter 2, Title XVII
of this Book, (on quasi-delicts) and by special laws." More precisely, a new
provision, Article 2177 of the new code provides:
"ART. 2177. Responsibility for fault or negligence
under the preceding article is entirely separate and
distinct from the civil liability arising from negligence
under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the
defendant."
According to the Code Commission: "The foregoing provision (Article 2177)
through at first sight startling, is not so novel or extraordinary when we
consider the exact nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a 'culpa aquilian' or quasi-delict,
of ancient origin, having always had its own foundation and individuality,
separate from criminal negligence. Such distinction between criminal
negligence and 'culpa extra-contractual' or 'cuasi-delito' has been sustained
by decision of the Supreme Court of Spain and maintained as clear, sound
and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore,
under the proposed Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal negligence,
but for damages due to a quasi-delict or 'culpa aquiliana'. But said article
forestalls a double recovery." (Report of the Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of
negligence, the same argument of Justice Bacobo about construction that
upholds "the spirit that giveth life" rather than that which is literal that killeth the
intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil
Code definitely establishes the separability and independence of liability in a
civil action for acts criminal in character (under Articles 29 to 32) from the civil
responsibility arising from crime fixed by Article 100 of the Revised Penal
15
Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule
111, contemplate also the same separability, it is "more congruent with the
spirit of law, equity and justice, and more in harmony with modern progress",
to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and
Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it
refers to "fault or negligence," covers not only acts "not punishable by law" but
also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in
the two cases vary. In other words, the extinction of civil liability referred to in
Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on
Article 100 of the Revised Penal Code, whereas the civil liability for the same
act considered as a quasi-delict only and not as a crime is not estinguished
even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused. Briefly stated, We here
hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and
negligent acts which may be punishable by law. 4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has
not extinguished his liability for quasi-delict, hence that acquittal is not a bar to
the instant action against him.
Coming now to the second issue about the effect of Reginald's emancipation
by marriage on the possible civil liability of Atty. Hill, his father, it is also Our
considered opinion that the conclusion of appellees that Atty. Hill is already
free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the
child (Article 327, Civil Code), and under Article 397, emancipation takes place
"by the marriage of the minor (child)", it is, however, also clear that pursuant to
Article 399, emancipation by marriage of the minor is not really full or absolute.
Thus "(E)mancipation by marriage or by voluntary concession shall terminate
parental authority over the child's person. It shall enable the minor to
administer his property as though he were of age, but he cannot borrow
money or alienate or encumber real property without the consent of his father
or mother, or guardian. He can sue and be sued in court only with the
assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible. The father and, in case of his death or

incapacity, the mother, are responsible. The father and, in case of his death
or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company." In the instant case, it is not
controverted that Reginald, although married, was living with his father and
getting subsistence from him at the time of the occurrence in question.
Factually, therefore, Reginald was still subservient to and dependent on his
father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the
joint and solidary liability of parents with their offending child under Article
2180 is that is the obligation of the parent to supervise their minor children
in order to prevent them from causing damage to third persons. 5 On the
other hand, the clear implication of Article 399, in providing that a minor
emancipated by marriage may not, nevertheless, sue or be sued without
the assistance of the parents, is that such emancipation does not carry with
it freedom to enter into transactions or do any act that can give rise to
judicial litigation. (See Manresa, id., Vol. II, pp. 766-767, 776.) And surely,
killing someone else invites judicial action. Otherwise stated, the marriage
of a minor child does not relieve the parents of the duty to see to it that the
child, while still a minor, does not give answerable for the borrowings of
money and alienation or encumbering of real property which cannot be
done by their minor married child without their consent. (Art. 399; Manresa,
supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill
notwithstanding the emancipation by marriage of Reginald. However,
inasmuch as it is evident that Reginald is now of age, as a matter of equity,
the liability of Atty. Hill has become merely subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and the trial court is
ordered to proceed in accordance with the foregoing opinion. Costs against
appellees.
|||
DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS
and LYDIA UMALI, respondents. Tranquilino F. Meris Law
Office for petitioner.
SYNOPSIS Dr. Ninevetch Cruz, petitioner herein, and one Dr. Lina Ercillo, the
attending anesthesiologist during the surgical operation performed on Lydia
Umali, were charged with "reckless imprudence and negligence resulting in
homicide" for the death of the latter. Trial ensued after both the petitioner and
Dr. Lina Ercillo pleaded not guilty to the charge. After trial, a decision was
rendered by the Municipal Trial Court in Cities (MTCC) of San Pablo City
discharging Ercillo of the responsibility for the death of Umali. However, Cruz
was found guilty as charged and was sentenced to suffer an indeterminate
penalty. The petitioner appealed to the Regional Trial Court, which affirmed in
toto the decision of the MTCC. She then filed a petition for review with the
Court of Appeals but to no avail, hence, this petition for certiorari assailing the
decision promulgated by the Court of Appeals. In substance, the issue raised
before the Supreme Court is whether or not the evidence on record supports
the petitioner's conviction of the crime of reckless imprudence resulting in
homicide, arising from an alleged medical malpractice.
According to the Supreme Court, a review of the records of this
case will show the absence of any expert testimony on the matter of the
standard of care employed by other physicians of good standing in the
conduct of similar operations. Expert testimony should have been offered
to prove that the circumstances cited by the courts below are constitutive
of conduct falling below the standard of care employed by other
physicians in good standing when performing the same operation. When
the qualifications of a physician are admitted, there is an inevitable
presumption that he takes the necessary precaution and employs the
best of his knowledge and skill in attending to his clients, unless the
contrary is sufficiently established. The presumption may be rebutted by
expert opinion, which is lacking herein. Petitioner, therefore, was
acquitted of the crime of reckless imprudence resulting in homicide, but
she was held civilly liable for the death of the victim and ordered to pay
the heirs of the deceased the amount of P50,000.00 as civil liability,
P100,000.00 as moral damages, and P50,000.00 as exemplary
damages.
SYLLABUS1. CRIMINAL LAW; RECKLESS IMPRUDENCE; ELEMENTS. —
The elements of reckless imprudence are: (1) that the offender does or fails to
do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it
be without malice; (4) that material damage results from the reckless
imprudence; and (5) that there is inexcusable lack of precaution on the part of
the offender, taking into consideration his employment or occupation, degree
16
of intelligence, physical condition, and other circumstances regarding persons,
time and place. TaHIDS
2. REMEDIAL LAW; EVIDENCE; TESTIMONIAL; EXPERT
TESTIMONY; NECESSARY IN ESTABLISHING THE STANDARD OF
CARE IN THE MEDICAL PROFESSION AND THAT THE PHYSICIAN'S
CONDUCT IN THE TREATMENT AND CARE FALLS BELOW SUCH
STANDARD; ABSENT IN CASE AT BAR. — Whether or not a physician
has committed an "inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of care observed by
other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at
the time of treatment or the present state of medical science. In the
recent case of Leonila Garcia-Rueda v. Wilfredo L. Pascasio, et
al., G.R. No. 118141, September 5, 1997, this Court stated that in
accepting a case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons practicing in the
same field, he will employ such training, care and skill in the treatment of
his patients. He therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a
condition under the same circumstances. It is in this aspect of medical
malpractice that expert testimony is essential to establish not only the
standard of care of the profession but also that the physician's conduct in
the treatment and care falls below such standard. Further, inasmuch as
the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support the
conclusion as to causation. Expert testimony should have been offered to
prove that the circumstances cited by the courts below are constitutive of
conduct falling below the standard of care employed by other physicians
in good standing when performing the same operation. It must be
remembered that when the qualifications of a physician are admitted, as
in the instant case, there is an inevitable presumption that in proper
cases he takes the necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless the contrary is
sufficiently established. This presumption is rebuttable by expert opinion
which is so sadly lacking in the case at bench.
3. CIVIL LAW; DAMAGES; RECOVERY FOR AN INJURY;
NEGLIGENCE MUST BE THE PROXIMATE CAUSE OF THE INJURY.
— In Chan Lugay v. St. Luke's Hospital, Inc., 10 CA Reports 415 [1966],
where the attending physician was absolved of liability for the death of

the complainant's wife and newborn baby, this Court held that: "In
order that there may be a recovery for an injury, however, it must be
shown that the 'injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between
the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes.' In other words, the
negligence must be the proximate cause of the injury. For,
'negligence, no matter in what it consists, cannot create a right of
action unless it is the proximate cause of the injury complained of.'
And 'the proximate cause of an injury is that cause, which, in natural
and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not
have occurred.' "
4. ID.; ID.; PREPONDERANCE OF EVIDENCE,
REQUIRED; LIABILITY ESTABLISHED IN CASE AT BAR. — The
probability that Lydia's death was caused by DIC was unrebutted
during trial and has engendered in the mind of this Court a reasonable
doubt as to the petitioner's guilt. Thus, her acquittal of the crime of
reckless imprudence resulting in homicide. While we condole with the
family of Lydia Umali, our hands are bound by the dictates of justice
and fair dealing which hold inviolable the right of an accused to be
presumed innocent until proven guilty beyond reasonable doubt.
Nevertheless, this Court finds the petitioner civilly liable for the death
of Lydia Umali, for while a conviction of a crime requires proof beyond
reasonable doubt, only a preponderance of evidence is required to
establish civil liability. For insufficiency of evidence this Court was not
able to render a sentence of conviction but it is not blind to the reckless
and imprudent manner in which the petitioner carried out her duties. A
precious life has been lost and the circumstances leading thereto
exacerbated the grief of those left behind. The heirs of the deceased
continue to feel the loss of their mother up to the present time and this
Court is aware that no amount of compassion and commiseration nor
words of bereavement can suffice to assuage the sorrow felt for the
loss of a loved one. Certainly, the award of moral and exemplary
damages in favor of the heirs of Lydia Umali are proper in the instant
case.
FRANCISCO, J p:
"Doctors are protected by a special rule of
law. They are not guarantors of care. They do not
even warrant a good result. They are not insurers
against mishaps or unusual consequences.
Furthermore they are not liable for honest mistakes of
judgment. . . ." 1
The present case against petitioner is in the nature of a
medical malpractice suit, which in simplest terms is the type of claim
which a victim has available to him or her to redress a wrong committed
by a medical professional which has caused bodily harm. 2 In this
jurisdiction, however, such claims are most often brought as a civil action
for damages under Article 2176 of the Civil Code, 3 and in some
instances, as a criminal case under Article 365 of the Revised Penal
Code 4 with which the civil action for damages is impliedly instituted. It
is via the latter type of action that the heirs of the deceased sought
redress for the petitioner's alleged imprudence and negligence in treating
the deceased thereby causing her death. The petitioner and one Dr. Lina
Ercillo who was the attending anaesthesiologist during the operation of
the deceased were charged with "reckless imprudence and negligence
resulting to (sic) homicide" in an information which reads:
"That on or about March 23, 1991, in the City
of San Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused
abovenamed, being then the attending
anaesthesiologist and surgeon, respectively, did then
and there, in a negligence (sic), careless, imprudent,
and incompetent manner, and failing to supply or store
sufficient provisions and facilities necessary to meet
any and all exigencies apt to arise before, during
and/or after a surgical operation causing by such
negligence, carelessness, imprudence, and
incompetence, and causing by such failure, including
the lack of preparation and foresight needed to avert a
tragedy, the untimely death of said Lydia Umali on the
day following said surgical operation." 5
Trial ensued after both the petitioner and Dr. Lina Ercillo
pleaded not guilty to the above-mentioned charge. On March 4, 1994, the
Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a
decision, the dispositive portion of which is hereunder quoted as follows:
"WHEREFORE, the court finds the accused
Dra. Lina Ercillo not guilty of the offense charged for
insufficiency of evidence while her co-accused Dra.
Ninevetch Cruz is hereby held responsible for the
17
death of Lydia Umali on March 24, 1991, and therefore
guilty under Art. 365 of the Revised Penal Code, and
she is hereby sentenced to suffer the penalty of 2
months and 1 day imprisonment of arresto mayor with
costs." 6
The petitioner appealed her conviction to the Regional Trial
Court (RTC) which affirmed in toto the decision of the MTCC 7 prompting
the petitioner to file a petition for review with the Court of Appeals but
to no avail. Hence this petition for review on certiorari assailing the
decision promulgated by the Court of Appeals on October 24, 1995
affirming petitioner's conviction with modification that she is further
directed to pay the heirs of Lydia Umali P50,000.00 as indemnity for her
death. 8
In substance, the petition brought before this Court raises the
issue of whether or not petitioner's conviction of the crime of reckless
imprudence resulting in homicide, arising from an alleged medical
malpractice, is supported by the evidence on record. dctai
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De
Ocampo, accompanied her mother to the Perpetual Help Clinic and
General Hospital situated in Balagtas Street, San Pablo City, Laguna.
They arrived at the said hospital at around 4:30 in the afternoon of the
same day. 9 Prior to March 22, 1991, Lydia was examined by the
petitioner who found a "myoma" 10 in her uterus, and scheduled her for a
hysterectomy operation on March 23, 1991. 11 Rowena and her mother
slept in the clinic on the evening of March 22, 1991 as the latter was to be
operated on the next day at 1:00 o'clock in the afternoon. 12 According to
Rowena, she noticed that the clinic was untidy and the window and the
floor were very dusty prompting her to ask the attendant for a rag to wipe
the window and the floor with.13 Because of the untidy state of the clinic,
Rowena tried to persuade her mother not to proceed with the
operation. 14 The following day, before her mother was wheeled into the
operating room, Rowena asked the petitioner if the operation could be
postponed. The petitioner called Lydia into her office and the two had a
conversation. Lydia then informed Rowena that the petitioner told her
that she must be operated on as scheduled. 15
Rowena and her other relatives, namely her husband, her
sister and two aunts waited outside the operating room while Lydia
underwent operation. While they were waiting, Dr. Ercillo went out of the
operating room and instructed them to buy tagamet ampules which

Rowena's sister immediately bought. About one hour had passed
when Dr. Ercillo came out again this time to ask them to buy blood for
Lydia. They bought type "A" blood from the St. Gerald Blood Bank and
the same was brought by the attendant into the operating room. After
the lapse of a few hours, the petitioner informed them that the
operation was finished. The operating staff then went inside the
petitioner's clinic to take their snacks. Some thirty minutes after, Lydia
was brought out of the operating room in a stretcher and the petitioner
asked Rowena and the other relatives to buy additional blood for Lydia.
Unfortunately, they were not able to comply with petitioner's order as
there wasno more type "A" blood available in the blood bank.
Thereafter, a person arrived to donate blood which was later
transfused to Lydia. Rowena then noticed her mother, who was
attached to an oxygen tank, gasping for breath. Apparently the oxygen
supply had run out and Rowena's husband together with the driver of
the accused had to go to the San Pablo District Hospital to get oxygen.
Lydia was given the fresh supply of oxygen as soon as it
arrived. 16 But at around 10:00 o'clock P.M. she went into shock and
her blood pressure dropped to 60/50. Lydia's unstable condition
necessitated her transfer to the San Pablo District Hospital so she
could be connected to a respirator and further examined. 17 The
transfer to the San Pablo District Hospital was without the prior
consent of Rowena nor of the other relatives present who found out
about the intended transfer only when an ambulance arrived to take
Lydia to the San Pablo District Hospital. Rowena and her other
relatives then boarded a tricycle and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she
was wheeled into the operating room and the petitioner and Dr. Ercillo
re-operated on her because there was blood oozing from the
abdominal incision. 19 The attending physicians summoned Dr.
Bartolome Angeles, head of the Obstetrics and Gynecology
Department of the San Pablo District Hospital. However, when Dr.
Angeles arrived, Lydia was already in shock and possibly dead as her
blood pressure was already 0/0. Dr. Angeles then informed petitioner
and Dr. Ercillo that there was nothing he could do to help save the
patient. 20 While the petitioner was closing the abdominal wall, the
patient died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the
morning, Lydia Umali was pronounced dead. Her death certificate
states "shock" as the immediate cause of death and "Disseminated
Intravascular Coagulation (DIC)" as the antecedent cause. 22
In convicting the petitioner, the MTCC found the following
circumstances as sufficient basis to conclude that she was indeed
negligent in the performance of the operation:
". . . , the clinic was untidy, there was lack of
provision like blood and oxygen to prepare for any
contingency that might happen during the operation.
The manner and the fact that the patient was brought
to the San Pablo District Hospital for reoperation
indicates that there was something wrong in the
manner in which Dra. Cruz conducted the operation.
There was no showing that before the operation,
accused Dra. Cruz had conducted a cardio pulmonary
clearance or any typing of the blood of the patient. It
was (sic) said in medical parlance that the "the
abdomen of the person is a temple of surprises"
because you do not know the whole thing the moment
it was open (sic) and surgeon must be prepared for any
eventuality thereof. The patient (sic) chart which is a
public document was not presented because it is only
there that we could determine the condition of the
patient before the surgery. The court also noticed in
Exh. "F-1" that the sister of the deceased wished to
postpone the operation but the patient was prevailed
upon by Dra. Cruz to proceed with the surgery. The
court finds that Lydia Umali died because of the
negligence and carelessness of the surgeon Dra.
Ninevetch Cruz because of loss of blood during the
operation of the deceased for evident unpreparedness
and for lack of skill, the reason why the patient was
brought for operation at the San Pablo City District
Hospital. As such, the surgeon should answer for such
negligence. With respect to Dra. Lina Ercillo, the
anaesthesiologist, there is no evidence to indicate that
she should be held jointly liable with Dra. Cruz who
actually did the operation." 23
The RTC reiterated the abovementioned findings of the MTCC
and upheld the latter's declaration of "incompetency, negligence and lack
of foresight and skill of appellant (herein petitioner) in handling the
subject patient before and after the operation." 24 And likewise affirming
the petitioner's conviction, the Court of Appeals echoed similar
observations, thus:
18
". . . While we may grant that the untidiness
and filthiness of the clinic may not by itself indicate
negligence, it nevertheless shows the absence of due
care and supervision over her subordinate employees.
Did this unsanitary condition permeate the operating
room? Were the surgical instruments properly
sterilized? Could the conditions in the OR have
contributed to the infection of the patient? Only the
petitioner could answer these, but she opted not to
testify. This could only give rise to the presumption that
she has nothing good to testify on her defense.
Anyway, the alleged "unverified statement of the
prosecution witness" remains unchallenged and
unrebutted.
Likewise undisputed is the prosecution's
version indicating the following facts: that the accused
asked the patient's relatives to buy Tagamet capsules
while the operation was already in progress; that after
an hour, they were also asked to buy type "A" blood for
the patient; that after the surgery, they were again
asked to procure more type "A" blood, but such was
not anymore available from the source; that the oxygen
given to the patient was empty; and that the son-in-law
of the patient, together with a driver of the petitioner,
had to rush to the San Pablo City District Hospital to
get the much-needed oxygen. All these conclusively
show that the petitioner had not prepared for any
unforeseen circumstances before going into the first
surgery, which was not emergency in nature, but was
elective or pre-scheduled; she had no ready
antibiotics, no prepared blood, properly typed and
cross-matched, and no sufficient oxygen supply. Cdpr
Moreover, there are a lot of questions that
keep nagging Us. Was the patient given any
cardio-pulmonary clearance, or at least a clearance by
an internist, which are standard requirements before a
patient is subjected to surgery. Did the petitioner
determine as part of the pre-operative evaluation, the
bleeding parameters of the patient, such as bleeding
time and clotting time? There is no showing that these
were done. The petitioner just appears to have been in

a hurry to perform the operation, even as the family
wanted a postponement to April 6, 1991. Obviously,
she did not prepare the patient; neither did she get
the family's consent to the operation. Moreover, she
did not prepare a medical chart with instructions for
the patient's care. If she did all these, proof thereof
should have been offered. But there is none. Indeed,
these are overwhelming evidence of recklessness
and imprudence." 25
This Court, however, holds differently and finds the
foregoing circumstances insufficient to sustain a judgment of
conviction against the petitioner for the crime of reckless imprudence
resulting in homicide. The elements of reckless imprudence are: (1)
that the offender does or fails to do an act; (2) that the doing or the
failure to do that act is voluntary; (3) that it be without malice; (4) that
material damage results from the reckless imprudence; and (5) that
there is inexcusable lack of precaution on the part of the offender,
taking into consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances regarding
persons, time and place.
Whether or not a physician has committed an "inexcusable
lack of precaution" in the treatment of his patient is to be determined
according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in
mind the advanced state of the profession at the time of treatment or
the present state of medical science. 26 In the recent case of Leonila
Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that in
accepting a case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons practicing in
the same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at least the
same level of care that any other reasonably competent doctor would
use to treat a condition under the same circumstances. It is in this
aspect of medical malpractice that expert testimony is essential to
establish not only the standard of care of the profession but also that
the physician's conduct in the treatment and care falls below such
standard. 28 Further, inasmuch as the causes of the injuries involved
in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation. 29
Immediately apparent from a review of the records of this case
is the absence of any expert testimony on the matter of the standard of
care employed by other physicians of good standing in the conduct of
similar operations. The prosecution's expert witnesses in the persons of
Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of
Investigation (NBI) only testified as to the possible cause of death but did
not venture to illuminate the court on the matter of the standard of care
that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of
the clinic and its untidiness; the lack of provisions such as blood, oxygen,
and certain medicines; the failure to subject the patient to a
cardio-pulmonary test prior to the operation; the omission of any form of
blood typing before transfusion; and even the subsequent transfer of
Lydia to the San Pablo Hospital and the reoperation performed on her by
the petitioner. But while it may be true that the circumstances pointed out
by the courts below seemed beyond cavil to constitute reckless
imprudence on the part of the surgeon, this conclusion is still best arrived
at not through the educated surmises nor conjectures of laymen,
including judges, but by the unquestionable knowledge of expert
witnesses. For whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of his patient is, in the
generality of cases, a matter of expert opinion. 30 The deference of
courts to the expert opinion of qualified physicians stems from its
realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating. 31 Expert
testimony should have been offered to prove that the circumstances cited
by the courts below are constitutive of conduct falling below the standard
of care employed by other physicians in good standing when performing
the same operation. It must be remembered that when the qualifications
of a physician are admitted, as in the instant case, there is an inevitable
presumption that in proper cases he takes the necessary precaution and
employs the best of his knowledge and skill in attending to his clients,
unless the contrary is sufficiently established. 32 This presumption is
rebuttable by expert opinion which is so sadly lacking in the case at
bench.
Even granting arguendo that the inadequacy of the facilities
and untidiness of the clinic; the lack of provisions; the failure to conduct
pre-operation tests on the patient; and the subsequent transfer of Lydia
to the San Pablo Hospital and the reoperation performed on her by the
petitioner do indicate, even without expert testimony, that petitioner was
recklessly imprudent in the exercise of her duties as a
surgeon, no cogent proof exists that any of these circumstances caused
19
petitioner's death. Thus, the absence of the fourth element of reckless
imprudence: that the injury to the person or property was a consequence
of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the
burden of establishing appellant's negligence and for a reasonable
conclusion of negligence, there must be proof of breach of duty on the
part of the surgeon as well as a causal connection of such breach and the
resulting death of his patient. 33 In Chan Lugay v. St. Luke's Hospital,
Inc., 34 where the attending physician was absolved of liability for the
death of the complainant's wife and newborn baby, this Court held that:
"In order that there may be a recovery for an
injury, however, it must be shown that the 'injury for
which recovery is sought must be the legitimate
consequence of the wrong done; the connection
between the negligence and the injury must be a direct
and natural sequence of events, unbroken by
intervening efficient causes.' In other words, the
negligence must be the proximate cause of the
injury. For, 'negligence, no matter in what it consists
cannot create a right of action unless it is the proximate
cause of the injury complained of .' And 'the proximate
cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without
which the result would not have
occurred.'" 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the
deceased summarized his findings as follows:
"Atty. Cachero:
Q. You mentioned about your Autopsy Report which
has been marked as Exh. "A-1-b". There
appears here a signature above the
typewritten name Floresto Arizala, Jr.,
whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh.
"A-1-b"?

A. Only as to the autopsy report no. 91-09, the time
and place and everything after the post
mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings"
about surgical incision, 14:0 cm.,
infraumbilical area, anterior abdominal
area, midline, will you please explain that
in your own language?
A. There was incision wound (sic) the area just
below the navel, sir.
Q. And the last paragraph of the postmortem
findings which I read: Uterus,
pear-shaped and pale measuring 7.5 x
5.5 x 5.0 cm. with some surface
nodulation of the fundic area posteriorly.
Cut-section shows diffusely pale
myometrium with areas of streak
induration. The ovaries and adnexal
structures are missing with the raw
surfaces patched with clotted blood.
Surgical sutures were noted on the
operative site.
Intestines and mesenteries are pale with blood
clots noted between the mesentric folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your
own language or in ordinary. . . .
A. There was a uterus which was not attached to the
adnexal structures namely ovaries which
were not present and also sign of previous
surgical operation and there were (sic)
clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place
(sic) with blood clots noted between the
mesenteric folds, will you please explain on
(sic) this?
A. In the peritoneal cavity, they are mostly peritonial
blood . . .
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood
vessel. Blood were (sic) outside as a result
of the injuries which destroyed the integrity
of the vessel allowing blood to sip (sic) out,
sir.
Q. By the nature of the postmortem findings indicated
in Exh. A-1-B, can you tell the court the
cause of death?
A. Yes, sir. The cause of death is: Gross findings are
compatible with hemorrhagic shock.
Q. Can you tell the us what could have caused this
hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
20
A. Unattended hemorrhage, sir. 36 (Emphasis
supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
"Q. And were you able to determine the cause of death
by virtue of the examination of the specimen
submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would
be difficult for me to determine the cause of
death, sir.
Q. Have you also examined the post mortem of Dr.
Arizala?
A. Yes, sir, and by virtue of the autopsy report in
connection with your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible
with the person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic
compatible?
A. It means that a person died of blood loss. Meaning a
person died of non-replacement of blood
and so the victim before she died there was
shock of diminish of blood of the
circulation. She died most probably before
the actual complete blood loss, sir.
Court:
Is it possible doctor that the loss of the blood was due
on (sic) operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone
surgery. Another may be a blood vessel may
be cut while on operation and this cause (sic)

bleeding, or may be set in the course of
operation, or may be (sic) he died after
the operation. Of course there are other
cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood
replacement?
A. Yes, sir." 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or
hemorrhagic shock as the cause of death. However, as likewise
testified to by the expert witnesses in open court, hemorrhage or
hemorrhagic shock during surgery may be caused by several different
factors. Thus, Dr. Salvador's elaboration on the matter:
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that
you mentioned you said that it could be at
the moment of operation when one losses
(sic) control of the presence, is that
correct? During the operation there is lost
(sic) of control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of
considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may
have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible
also to some clotting defect, is that
correct?
A. May be (sic)." 38 (Emphasis supplied).
Defense witness, Dr. Bu C. Castro also gave the following
expert opinion:
"Q. Doctor even a patient after an operations (sic)
would suffer hemorrhage what would be the
possible causes of such hemorrhage (sic)?
A. Among those would be what we call Intravascular
Coagulation and this is the reason for the
bleeding, sir, which cannot be prevented by
anyone, it will happen to anyone, anytime
and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the
cutting or the operations done in the body?
A. Not related to this one, the bleeding here is not
related to any cutting or operation that I (sic)
have done.
Q. Aside from the DIC what could another causes (sic)
that could be the cause for the hemorrhage
or bleeding in a patient by an operations
(sic)?
A. In general sir, if there was an operations (sic) and it
is possible that the ligature in the suture was
(sic) become (sic) loose, it is (sic) becomes
loose if proven.
xxx xxx xxx
Q. If the person who performed an autopsy does not
find any untight (sic) clot (sic) blood vessel or
any suture that become (sic) loose the cause
of the bleeding could not be attributed to the
fault of the subject?
A. Definitely, sir." 39 (Emphasis supplied.)
According to both doctors, the possible causes of hemorrhage
during an operation are: (1) the failure of the surgeon to tie or suture a cut
blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the
subsequent loosening of the tie or suture applied to a cut blood vessel;
21
and (4) and a clotting defect known as DIC. It is significant to state at this
juncture that the autopsy conducted by Dr. Arizala on the body of Lydia
did not reveal any untied or unsutured cut blood vessel nor was there any
indication that the tie or suture of a cut blood vessel had become loose
thereby causing the hemorrhage. 40 Hence the following pertinent
portion of Dr. Arizala's testimony:
"Q: Doctor, in examining these structures did you know
whether these were sutured ligature or plain
ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut
structures were tied by first suturing it and
then tying a knot or the tie was merely
placed around the cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you
did not even bothered (sic) to examine, is
that correct?
A: Well, I bothered enough to know that they were
sutured, sir.
Q: So, therefore, Doctor, you would not know whether
any of the cut structures were not sutured or
tied neither were you able to determine
whether any loose suture was found in the
peritoneal cavity?
A: I could not recall any loose sutured (sic), sir." 41
On the other hand, the findings of all three doctors do not
preclude the probability that DIC caused the hemorrhage and
consequently, Lydia's death. DIC which is a clotting defect creates a
serious bleeding tendency and when massive DIC occurs as a
complication of surgery leaving raw surface, major hemorrhage
occurs. 42 And as testified to by defense witness, Dr. Bu C. Castro,
hemorrhage due to DIC "cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
"Q. Now, under that circumstance one of the possibility
as you mentioned in (sic) DIC?

A. Yes, sir.
Q. And you mentioned that this cannot be
prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will
tell you whether this patient suffered
among such things as DIC?
A. Well, I did reserve because of the condition of the
patient.
Q. Now, Doctor you said that you went through the
record of the deceased Lydia Umali
looking for the chart, the operated (sic)
records, the post mortem findings on the
histophanic (sic) examination based on
your examination of record, doctor, can
you more or less says (sic) what part are
(sic) concerned could have been the
caused (sic) of death of this Lydia Umali?
A. As far as the medical record is concern (sic) the
caused (sic) of death is dessimulated (sic)
Intra Vascular Coagulation or the DIC
which resulted to hemorrhage or
bleedings, sir.
Q. Doctor based on your findings then there is
knowing (sic) the doctor would say
whether the doctor her (sic) has been (sic)
fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on
finding they just read the chart as well as
the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon,
sir." 44
This Court has no recourse but to rely on the expert
testimonies rendered by both prosecution and defense witnesses that
substantiate rather than contradict petitioner's allegation that the cause
of Lydia's death was DIC which, as attested to by an expert witness,
cannot be attributed to the petitioner's fault or negligence. The probability
that Lydia's death was caused by DIC was unrebutted during trial and
has engendered in the mind of this Court a reasonable doubt as to the
petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence
resulting in homicide. While we condole with the family of Lydia Umali,
our hands are bound by the dictates of justice and fair dealing which hold
inviolable the right of an accused to be presumed innocent until proven
guilty beyond reasonable doubt. Nevertheless, this Court finds the
petitioner civilly liable for the death of Lydia Umali, for while a conviction
of a crime requires proof beyond reasonable doubt, only a
preponderance of evidence is required to establish civil liability. 45
The petitioner is a doctor in whose hands a patient puts his life
and limb. For insufficiency of evidence this Court was not able to render a
sentence of conviction but it is not blind to the reckless and imprudent
manner in which the petitioner carried out her duties. A precious life has
been lost and the circumstances leading thereto exacerbated the grief of
those left behind. The heirs of the deceased continue to feel the loss of
their mother up to the present time 46 and this Court is aware
that no amount of compassion and commiseration nor words of
bereavement can suffice to assuage the sorrow felt for the loss of a loved
one. Certainly, the award of moral and exemplary damages in favor of the
heirs of Lydia Umali are proper in the instant case.
22
WHEREFORE, premises considered, petitioner DR.
NINEVETCH CRUZ is hereby ACQUITTED of the crime of reckless
imprudence resulting in homicide but is ordered to pay the heirs of the
deceased Lydia Umali the amount of FIFTY THOUSAND PESOS
(P50,000.00) as civil liability, ONE HUNDRED THOUSAND PESOS
(P100,000.00) as moral damages, and FIFTY THOUSAND PESOS
(P50,000.00) as exemplary damages. LLpr
Let a copy of this decision be furnished to the Professional
Regulation Commission (PRC) for appropriate action.
SO ORDERED.
|||
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors
LLOYD and KRISTINE, all surnamed REYES, represented by
their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS
OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE
BLANES, and DR. MARLYN RICO, respondents. Abbas
Abundiente & Associates Law Offices for petitioner. Fernan
Mercado Cordero Dela Torre & Bael for private respondent. Arsenio
C. Pascual, Jr. for respondents Sisters of Mercy, Sis R. Palacio & Dr.
M. Blanes.
SYNOPSIS Petitioners, wife and children of the deceased patient, Jorge
Reyes, appealed from the decision of the Court of Appeals and the trial court
which dismissed their complaint for damages for medical practice filed against
the doctors who attended Jorge Reyes.
The trial court and the Court of Appeals required expert opinion on
the alleged breach by respondents of the standard of care required under the
circumstances. Expert witnesses, however, testified that due care had been
exercised and the service or treatment rendered followed the usual procedure
of those skilled in that particular practice.
Petitioners claimed that expert testimony was not necessary, rather
the doctrine of res ipsa loquitur should have been applied in determining the
doctors' failure to observe due care which is immediately apparent to a layman.
Jorge Reyes was brought to the hospital merely experiencing fever and chills
for five days, but he was fully conscious, coherent and ambulant, when he

went to the hospital. Due to their acts of negligence in their treatment of
Jorge Reyes, the latter died after only ten hours from the time of his
admission.
The Supreme Court ruled that expert testimony was essential in
determining the reasonable level of care required under the circumstances
in the present case. According to expert testimony, there was no doctors'
negligence in the treatment of Jorge Reyes because the doctors who
treated him observed the due care required under the circumstances. The
Widal test is normally used when a case of typhoid fever is suspected and
chloromycetin was the drug of choice. The burden of proving that Jorge
Reyes was suffering from any other illness rested with the petitioners, but
they failed to present expert opinion on this. Finally, the standard of care
and degree of diligence contemplated from physicians is simply the
reasonable average merit among the ordinarily good physicians.
SYLLABUS 1. CRIMINAL LAW; DAMAGES; NEGLIGENCE; MEDICAL
MALPRACTICE, WHEN ACTIONABLE; ELEMENTS THEREOF. —
Petitioner's action is for medical malpractice. This is a particular form of
negligence which consists in the failure of a physician or surgeon to apply to
his practice of medicine that degree of care and skill which is ordinarily
employed by the profession generally, under similar conditions, and in like
surrounding circumstances. In order to successfully pursue such a claim, a
patient must prove that the physician or surgeon either failed to do
something which a reasonably prudent physician or surgeon would have
done, or that he or she did something that a reasonably prudent physician
or surgeon would not have done, and that the failure or action caused injury
to the patient. There are thus four elements involved in medical negligence
cases, namely; duty, breach, injury, and proximate causation. CIcTAE
2. ID.; ID.; ID.; ID.; EXPERT TESTIMONY IS ESSENTIAL TO
DETERMINE CAUSE OF INJURIES; CASE AT BAR. — In the present
case, there is no doubt that a physician-patient relationship existed
between respondent doctors and Jorge Reyes. Respondents were thus
duty-bound to use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the same
circumstances. It is breach of this duty which constitutes actionable
malpractice. As to this aspect of medical malpractice, the determination of
the reasonable level of care and the breach thereof, expert testimony is
essential. Inasmuch as the causes of the injuries involved in malpractice
actions are determinable only in the light of scientific knowledge, it has
been recognized that expert testimony is usually necessary to support the
conclusion as to causation.
3. ID.; ID.; ID.; ID.; ID.; WHEN EXPERT TESTIMONY MAY BE
DISPENSED WITH; CASE AT BAR. — There is a case when expert testimony
may be dispensed with, and that is under the doctrine of res ipsa
loquitur. Petitioners asserted in the Court of Appeals that the doctrine of res
ipsa loquitur applies to the present case because Jorge Reyes was merely
experiencing fever and chills for five days and was fully conscious, coherent,
and ambulant when he went to the hospital. Yet he died after only ten hours
from the time of his admission. . . . While it is true that the patient died just a
few hours after professional medical assistance was rendered, there is really
nothing unusual or extraordinary about his death. Prior to his admission, the
patient already had recurring fevers and chills for five days unrelieved by the
analgesic, antipyretic, and antibiotics given him by his wife. This shows that he
had been suffering from a serious illness and professional medical help came
too late for him. Respondents alleged failure to observe due care was not
immediately apparent to a layman so as to justify application of res ipsa
loquitur. The question required expert opinion on the alleged breach by
respondent of the standard of care required by the circumstances.
4. ID.; ID.; ID.; ID.; STANDARD OF CARE AND DILIGENCE
CONTEMPLATED FOR DOCTORS. — The practice of medicine is a
profession engaged in only by qualified individuals. It is a right earned through
years of education, training, and by first obtaining a license from the state
through professional board examinations. Such license may, at any time and
for cause, be revoked by the government. In addition to state regulation, the
conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient
code of discipline and ethical rules which doctors have imposed upon
themselves in recognition and acceptance of their great responsibility to
society. Given these safeguards, there is no need to expressly require of
doctors the observance of "extraordinary" diligence. As it is now, the practice
of medicine is already conditioned upon the highest degree of diligence. And,
as we have already noted, the standard contemplated for doctors is simply the
reasonable average merit among ordinarily good physicians. That is
reasonable diligence for doctors or, as the Court of Appeals called it, the
reasonable "skill and competence . . . that a physician in the same or similar
locality . . . should apply."
5. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — Indeed, the standard
contemplated is not what is actually the average merit among all known
practitioners from the best to the worst and from the most to the least
experienced, but the reasonable average merit among the ordinarily good
physicians. Here, Dr. Marlyn Rico did not depart from the reasonable standard
23
recommended by the experts as she in fact observed the due care required
under the circumstances. Though the Widal test is not conclusive, it remains a
standard diagnostic test for typhoid fever and, in the present case, greater
accuracy through repeated testing was rendered unobtainable by the early
death of the patient. The results of the Widal test and the patient's history of
fever with chills for five days, taken with the fact that typhoid fever was then
prevalent as indicated by the fact that the clinic had been getting about 15 to
20 typhoid cases a month, were sufficient to give upon any doctor of
reasonable skill the impression that Jorge Reyes had typhoid fever. Dr. Rico
was also justified in recommending the administration of the drug
chloromycetin, the drug of choice for typhoid fever. The burden of proving that
Jorge Reyes was suffering from any other illness rested with the petitioners.
As they failed to present expert opinion on this, preponderant evidence to
support their contention is clearly absent.
MENDOZA, J p:
This is a petition for review of the decision 1 of the Court of Appeals
in CA-G.R. CV No. 36551 affirming the decision of the Regional Trial Court,
Branch IX, Cebu City which dismissed a complaint for damages filed by
petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes.
The other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all
surnamed Reyes, were their children. Five days before his death on January 8,
1987, Jorge had been suffering from a recurring fever with chills. After he
failed to get relief from some home medication he was taking, which consisted
of analgesic, antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic
by his wife. He was attended to by respondent Dr. Marlyn Rico, resident
physician and admitting physician on duty, who gave Jorge a physical
examination and took his medical history. She noted that at the time of his
admission, Jorge was conscious, ambulatory, oriented, coherent, and with
respiratory distress. 2 Typhoid fever was then prevalent in the locality, as the
clinic had been getting from 15 to 20 cases of typhoid per month. 3 Suspecting
that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test,
a standard test for typhoid fever, to be performed on Jorge. Blood count,
routine urinalysis, stool examination, and malarial smear were also
made. 4 After about an hour, the medical technician submitted the results of
the test from which Dr. Rico concluded that Jorge was positive for typhoid

fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to
respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening.
She also took Jorge's history and gave him a physical examination. Like Dr.
Rico, her impression was that Jorge had typhoid fever. Antibiotics being the
accepted treatment for typhoid fever, she ordered that a compatibility test
with the antibiotic chloromycetin be done on Jorge. Said test was
administered by nurse Josephine Pagente who also gave the patient a
dose of triglobe. As she did not observe any adverse reaction by the patient
to chloromycetin, Dr. Blanes ordered the first five hundred milligrams of
said antibiotic to be administered on Jorge at around 9:00 p.m. A second
dose was administered on Jorge about three hours later just before
midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as
Jorge's temperature rose to 41°C. The patient also experienced chills and
exhibited respiratory distress, nausea, vomiting, and convulsions. Dr.
Blanes put him under oxygen, used a suction machine, and administered
hydrocortisone, temporarily easing the patient's convulsions. When he
regained consciousness, the patient was asked by Dr. Blanes whether he
had a previous heart ailment or had suffered from chest pains in the past.
Jorge replied he did not. 5 After about 15 minutes, however, Jorge again
started to vomit, showed restlessness, and his convulsions returned. Dr.
Blanes re-applied the emergency measures taken before and, in addition,
valium was administered. Jorge, however, did not respond to the treatment
and slipped into cyanosis, a bluish or purplish discoloration of the skin or
mucous membrane due to deficient oxygenation of the blood. At around
2:00 a.m., Jorge died. He was forty years old. The cause of his death was
"Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever."
On June 3, 1987, petitioners filed before the Regional Trial Court
of Cebu City a complaint 6 for damages against respondents Sisters of
Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse
Josephine Pagente. On September 24, 1987, petitioners amended their
complaint to implead respondent Mercy Community Clinic as additional
defendant and to drop the name of Josephine Pagente as defendant since
she was no longer connected with respondent hospital. Their principal
contention was that Jorge did not die of typhoid fever. 7 Instead, his death
was due to the wrongful administration of chloromycetin. They contended
that had respondent doctors exercised due care and diligence, they would
not have recommended and rushed the performance of the Widal Test,
hastily concluded that Jorge was suffering from typhoid fever, and
administered chloromycetin without first conducting sufficient tests on the
24
patient's compatibility with said drug. They charged respondent clinic and its Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorge's case was already
directress, Sister Rose Palacio, with negligence in failing to provide adequate the maximum by which a conclusion of typhoid fever may be
facilities and in hiring negligent doctors and nurses. 8 made.No additional information may be deduced from a higher dilution. 11 He
said that Dr. Vacalares' autopsy on Jorge was incomplete and thus
Respondents denied the charges. During the pre-trial conference, inconclusive.
the parties agreed to limit the issues on the following: (1) whether the death of
Jorge Reyes was due to or caused by the negligence, carelessness, On September 12, 1991, the trial court rendered its decision
imprudence, and lack of skill or foresight on the part of defendants; (2) whether absolving respondents from the charges of negligence and dismissing
respondent Mercy Community Clinic was negligent in the hiring of its petitioners' action for damages. The trial court likewise dismissed
employees; and (3) whether either party was entitled to damages. The case respondents' counterclaim, holding that, in seeking damages from
was then heard by the trial court during which, in addition to the testimonies of respondents, petitioners were impelled by the honest belief that Jorge's death
the parties, the testimonies of doctors as expert witnesses were presented. was due to the latter's negligence.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Petitioners brought the matter to the Court of Appeals. On July 31,
Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro City. 1997, the Court of Appeals affirmed the decision of the trial court.
On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to
determine the cause of his death. However, he did not open the skull to Hence this petition.
examine the brain. His findings 9showed that the gastro-intestinal tract was
Petitioners raise the following assignment of errors:
normal and without any ulceration or enlargement of the nodules. Dr.
Vacalares testified that Jorge did not die of typhoid fever. He also stated that I. THE HONORABLE COURT OF APPEALS
he had not seen a patient die of typhoid fever within five days from the onset of COMMITTED A REVERSIBLE ERROR
the disease. WHEN IT RULED THAT THE DOCTRINE
OF RES IPSA LOQUITUR IS NOT
For their part, respondents offered the testimonies of Dr. Peter
APPLICABLE IN THE INSTANT CASE.
Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal
medicine whose expertise is microbiology and infectious diseases. He is also II. THE HONORABLE COURT OF APPEALS
a consultant at the Cebu City Medical Center and an associate professor of COMMITTED REVERSIBLE ERROR
medicine at the South Western University College of Medicine in Cebu City. WHEN IT MADE AN UNFOUNDED
He had treated over a thousand cases of typhoid patients. According to Dr. ASSUMPTION THAT THE LEVEL OF
Gotiong, the patient's history and positive Widal Test results ratio of 1:320 MEDICAL PRACTICE IS LOWER IN ILIGAN
would make him suspect that the patient had typhoid fever. As to Dr. CITY.
Vacalares' observation regarding the absence of ulceration in Jorge's
gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines III. THE HONORABLE COURT OF APPEALS
of a typhoid victim may be microscopic. He noted that since the toxic effect of GRAVELY ERRED WHEN IT RULED FOR
typhoid fever may lead to meningitis, Dr. Vacalares' autopsy should have A LESSER STANDARD OF CARE AND
included an examination of the brain. 10 DEGREE OF DILIGENCE FOR MEDICAL
PRACTICE IN ILIGAN CITY WHEN IT
The other doctor presented was Dr. Ibarra Panopio, a member of APPRECIATE[D] NO DOCTOR'S
the American Board of Pathology, examiner of the Philippine Board of NEGLIGENCE IN THE TREATMENT OF
Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, JORGE REYES.
associate professor of the Cebu Institute of Medicine, and chief pathologist of
the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated Petitioner's action is for medical malpractice. This is a particular
that although he was partial to the use of the culture test for its greater form of negligence which consists in the failure of a physician or surgeon to
reliability in the diagnosis of typhoid fever, the Widal Test may also be used. apply to his practice of medicine that degree of care and skill which is ordinarily

employed by the profession generally, under similar conditions, and in like
surrounding circumstances. 12 In order to successfully pursue such a claim,
a patient must prove that the physician or surgeon either failed to do
something which a reasonably prudent physician or surgeon would have
done, or that he or she did something that a reasonably prudent physician
or surgeon would not have done, and that the failure or action caused injury
to the patient. 13 There are thus four elements involved in medical
negligence cases, namely: duty, breach, injury, and proximate causation.
In the present case, there is no doubt that a physician-patient
relationship existed between respondent doctors and Jorge Reyes.
Respondents were thus duty-bound to use at least the same level of care
that any reasonably competent doctor would use to treat a condition under
the same circumstances. It is breach of this duty which constitutes
actionable malpractice. 14 As to this aspect of medical malpractice, the
determination of the reasonable level of care and the breach thereof, expert
testimony is essential. Inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation. 15
Res Ipsa Loquitur
There is a case when expert testimony may be dispensed with,
and that is under the doctrine of res ipsa loquitur. As held in Ramos v. Court
of Appeals: 16
Although generally, expert medical
testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he
has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the
proof of negligence. The reason is that the general
rule on the necessity of expert testimony applies
only to such matters clearly within the domain of
medical science, and not to matters that are within
the common knowledge of mankind which may be
testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a
patient has been treated or operated upon with a
reasonable degree of skill and care. However,
25
testimony as to the statements and acts of physicians This contention was rejected by the appellate court.
and surgeons, external appearances, and manifest
conditions which are observable by any one may be Petitioners now contend that all requisites for the application of res
given by non-expert witnesses. Hence, in cases where ipsa loquitur were present, namely: (1) the accident was of a kind which does
the res ipsa loquitur is applicable, the court is permitted not ordinarily occur unless someone is negligent; (2) the instrumentality or
to find a physician negligent upon proper proof of injury agency which caused the injury was under the exclusive control of the person
to the patient, without the aid of expert testimony, in charge; and (3) the injury suffered must not have been due to any voluntary
where the court from its fund of common knowledge action or contribution of the person injured. 18
can determine the proper standard of care. Where
The contention is without merit. We agree with the ruling of the
common knowledge and experience teach that a
Court of Appeals. In the Ramos case, the question was whether a surgeon, an
resulting injury would not have occurred to the patient if
anesthesiologist, and a hospital should be made liable for the comatose
due care had been exercised, an inference of
condition of a patient scheduled for cholecystectomy. 19 In that case, the
negligence may be drawn giving rise to an application
patient was given anesthesia prior to her operation. Noting that the patient was
of the doctrine of res ipsa loquitur without medical
neurologically sound at the time of her operation, the Court applied the
evidence, which is ordinarily required to show not only
doctrine of res ipsa loquitur as mental brain damage does not normally occur
what occurred but how and why it occurred. When the
in a gallbladder operation in the absence of negligence of the anesthesiologist.
doctrine is appropriate, all that the patient must do is
Taking judicial notice that anesthesia procedures had become so common
prove a nexus between the particular act or omission
that even an ordinary person could tell if it was administered properly, we
complained of and the injury sustained while under the
allowed the testimony of a witness who was not an expert. In this case, while it
custody and management of the defendant without
is true that the patient died just a few hours after professional medical
need to produce expert medical testimony to establish
assistance was rendered, there is really nothing unusual or extraordinary
the standard of care. Resort to res ipsa loquitur is
about his death. Prior to his admission, the patient already had recurring
allowed because there is no other way, under usual
fevers and chills for five days unrelieved by the analgesic, antipyretic, and
and ordinary conditions, by which the patient can
antibiotics given him by his wife. This shows that he had been suffering from a
obtain redress for injury suffered by him.
serious illness and professional medical help came too late for him.
Thus, courts of other jurisdictions have
Respondents alleged failure to observe due care was not
applied the doctrine in the following situations: leaving
immediately apparent to a layman so as to justify application of res ipsa
of a foreign object in the body of the patient after an
loquitur. The question required expert opinion on the alleged breach by
operation, injuries sustained on a healthy part of the
respondents of the standard of care required by the circumstances.
body which was not under, or in the area, of treatment,
Furthermore, on the issue of the correctness of her diagnosis, no presumption
removal of the wrong part of the body when another
of negligence can be applied to Dr. Marlyn Rico. As held in Ramos:
part was intended, knocking out a tooth while a
patient's jaw was under anesthetic for the removal of . . . Res ipsa loquitur is not a rigid or ordinary
his tonsils, and loss of an eye while the patient was doctrine to be perfunctorily used but a rule to be
under the influence of anesthetic, during or following cautiously applied, depending upon the circumstances
an operation for appendicitis, among others. 17 of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
Petitioners asserted in the Court of Appeals that the doctrine of res
matter of common knowledge and observation, that the
ipsa loquitur applies to the present case because Jorge Reyes was merely
consequences of professional care were not as such
experiencing fever and chills for five days and was fully conscious, coherent,
as would ordinarily have followed if due care had been
and ambulant when he went to the hospital. Yet, he died after only ten hours
exercised. A distinction must be made between the
from the time of his admission.
failure to secure results, and the occurrence of

something more unusual and not ordinarily found if
the service or treatment rendered followed the usual
procedure of those skilled in that particular
practice. It must be conceded that the doctrine of
res ipsa loquitur can have no application in a suit
against a physician or a surgeon which involves the
merits of a diagnosis or of a scientific treatment. The
physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct,
or why any particular scientific treatment did not
produce the desired result. 20
Specific Acts of Negligence
We turn to the question whether petitioners have established
specific acts of negligence allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and
erroneously relied upon the Widal test, diagnosed Jorge's illness as typhoid
fever, and immediately prescribed the administration of the antibiotic
chloromycetin; 21 and (2) Dr. Marvie Blanes erred in ordering the
administration of the second dose of 500 milligrams of chloromycetin barely
three hours after the first was given. 22 Petitioners presented the testimony
of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao
Training Hospital, Cagayan de Oro City, who performed an autopsy on the
body of Jorge Reyes. Dr. Vacalares testified that, based on his findings
during the autopsy, Jorge Reyes did not die of typhoid fever but of shock
undetermined, which could be due to allergic reaction or chloromycetin
overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an
expert witness, we do not find him to be so as he is not a specialist on
infectious diseases like typhoid fever. Furthermore, although he may have
had extensive experience in performing autopsies, he admitted that he had
yet to do one on the body of a typhoid victim at the time he conducted the
postmortem on Jorge Reyes. It is also plain from his testimony that he has
treated only about three cases of typhoid fever. Thus, he testified that: 23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have
never seen a patient who died of typhoid
fever?
A In autopsy. But, that was when I was a resident
physician yet.
Q But you have not performed an autopsy of a patient
who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient
who died of typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while
you were in the general practice of
medicine?
A In our case we had no widal test that time so we
cannot consider that the typhoid fever is like
this and like that. And the widal test does not
specify the time of the typhoid fever.
Q The question is: how many typhoid fever cases had
you seen in your general practice regardless
of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her
diagnosis. Both lower courts were therefore correct in discarding his
testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a
pulmonologist to prove that brain injury was due to oxygen deprivation after
the patient had bronchospasms 24 triggered by her allergic response to a
drug, 25 and not due to faulty intubation by the anesthesiologist. As the issue
was whether the intubation was properly performed by an anesthesiologist, we
rejected the opinion of the pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about anesthesia practice,
26
procedure, and their complications; nor (2) an allergologist who could properly
advance expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic and toxic effects of the
drug allegedly responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by
respondents clearly were experts on the subject. They vouched for the
correctness of Dr. Marlyn Rico's diagnosis. Dr. Peter Gotiong, a diplomate
whose specialization is infectious diseases and microbiology and an associate
professor at the Southwestern University College of Medicine and the Gullas
College of Medicine, testified that he has already treated over a thousand
cases of typhoid fever. 26 According to him, when a case of typhoid fever is
suspected, the Widal test is normally used, 27 and if the 1:320 results of the
Widal test on Jorge Reyes had been presented to him along with the patient's
history, his impression would also be that the patient was suffering from
typhoid fever. 28 As to the treatment of the disease, he stated that
chloromycetin was the drug of choice. 29 He also explained that despite the
measures taken by respondent doctors and the intravenous administration of
two doses of chloromycetin, complications of the disease could not be
discounted. His testimony is as follows: 30
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to
320, what treatment if any would be given?
A If those are the findings that would be presented to
me, the first thing I would consider would be
typhoid fever.
Q And presently what are the treatments commonly
used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have
administered chloramphenical about 3 1/2
hours later, the patient associated with chills,
temperature — 41°C, what could possibly
come to your mind?c
A Well, when it is change in the clinical finding, you
have to think of complication.

Q And what will you consider on the complication of
typhoid? TCaEIc
A One must first understand that typhoid fever is
toxemia. The problem is complications
are caused by toxins produced by the
bacteria . . . whether you have suffered
complications to think of — heart toxic
myocardities; then you can consider a
toxic meningitis and other complications
and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who
received medication of chloromycetin of
500 milligrams intravenous, after the skin
test, and received a second dose of
chloromycetin of 500 milligrams, 3 hours
later, the patient developed chills . . . rise
in temperature to 41°C, and then about
40 minutes later the temperature rose to
100°F, cardiac rate of 150 per minute who
appeared to be coherent, restless,
nauseating, with seizures: what
significance could you attach to these
clinical changes?
A I would then think of toxemia, which was toxic
meningitis and probably a toxic meningitis
because of the high cardiac rate.
Q Even if the same patient who, after having given
intramuscular valium, became conscious
and coherent about 20 minutes later,
have seizure and cyanosis and rolling of
eyeballs and vomiting . . . and death: what
significance would you attach to this
development?
A We are probably dealing with typhoid to
meningitis.
Q In such case, Doctor, what finding if any could you
expect on the post-mortem examination?
A No, the finding would be more on the meninges or
covering of the brain.
Q And in order to see those changes would it require
opening the skull?
A Yes.
As regards Dr. Vacalares' finding during the autopsy that the deceased's
gastro-intestinal tract was normal, Dr. Rico explained that, while
hyperplasia 31 in the payer's patches or layers of the small intestines is
present in typhoid fever, the same may not always be grossly visible and
a microscope was needed to see the texture of the cells. 32
Respondents also presented the testimony of Dr. Ibarra T. Panopio
who is a member of the Philippine and American Board of Pathology, an
examiner of the Philippine Board of Pathology, and chief pathologist at the
Metro Cebu Community Hospital, Perpetual Succor Hospital, and the Andres
Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist,
he recognized that the Widal test is used for typhoid patients, although he did
not encourage its use because a single test would only give a presumption
necessitating that the test be repeated, becoming more conclusive at the
second and third weeks of the disease. 33 He corroborated Dr. Gotiong's
testimony that the danger with typhoid fever is really the possible
complications which could develop like perforation, hemorrhage, as well as
liver and cerebral complications. 34 As regards the 1:320 results of the Widal
test on Jorge Reyes, Dr. Panopio stated that no additional information could
be obtained from a higher ratio. 35 He also agreed with Dr. Gotiong that
hyperplasia in the payer's patches may be microscopic. 36
Indeed, the standard contemplated is not what is actually the
average merit among all known practitioners from the best to the worst and
from the most to the least experienced, but the reasonable average merit
among the ordinarily good physicians. 37 Here, Dr. Marlyn Rico did not depart
from the reasonable standard recommended by the experts as she in fact
observed the due care required under the circumstances. Though the Widal
test is not conclusive, it remains a standard diagnostic test for typhoid fever
and, in the present case, greater accuracy through repeated testing was
rendered unobtainable by the early death of the patient. The results of the
Widal test and the patient's history of fever with chills for five days, taken with
the fact that typhoid fever was then prevalent as indicated by the fact that the
clinic had been getting about 15 to 20 typhoid cases a month, were sufficient
to give upon any doctor of reasonable skill the impression that Jorge Reyes
had typhoid fever.
27
Dr. Rico was also justified in recommending the administration of
the drug chloromycetin, the drug of choice for typhoid fever. The burden of
proving that Jorge Reyes was suffering from any other illness rested with the
petitioners. As they failed to present expert opinion on this, preponderant
evidence to support their contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who
took over from Dr. Rico, was negligent in ordering the intravenous
administration of two doses of 500 milligrams of chloromycetin at an interval of
less than three hours. Petitioners claim that Jorge Reyes died of anaphylactic
shock 38 or possibly from overdose as the second dose should have been
administered five to six hours after the first, per instruction of Dr. Marlyn Rico.
As held by the Court of Appeals, however:
That chloromycetin was likewise a proper
prescription is best established by medical authority.
Wilson, et. al., in Harrison's Principle of Internal
Medicine, 12th ed. write that chloramphenicol (which is
the generic of chloromycetin) is the drug of choice for
typhoid fever and that no drug has yet proven better in
promoting a favorable clinical response.
"Chlorampenicol (Chloromycetin) is specifically
indicated for bacterial meningitis, typhoid fever,
rickettsial infections, bacteriodes infections, etc."
(PIMS Annual, 1994, p. 211) The dosage likewise
including the first administration of five hundred
milligrams (500 mg.) at around nine o'clock in the
evening and the second dose at around 11:30 the
same night was still within medically acceptable limits,
since the recommended dose of chloromycetin is one
(1) gram every six (6) hours. (cf. Pediatric Drug
Handbook, 1st Ed., Philippine Pediatric Society,
Committee on Therapeutics and Toxicology, 1996).
The intravenous route is likewise correct. (Mansser,
O'Nick, Pharmacology and Therapeutics) Even if the
test was not administered by the physician-on-duty, the
evidence introduced that it was Dra. Blanes who
interpreted the results remain uncontroverted.
(Decision, pp 16-17) Once more, this Court rejects any
claim of professional negligence in this regard.
xxx xxx xxx

As regards anaphylactic shock, the usual
way of guarding against it prior to the administration
of a drug, is the skin test of which, however, it has
been observed: "Skin testing with haptenic drugs is
generally not reliable. Certain drugs cause
nonspecific histamine release, producing a
weal-and-flare reaction in normal individuals.
Immunologic activation of mast cells requires a
polyvalent allergen, so a negative skin test to a
univalent haptenic drug does not rule out
anaphylactic sensitivity to that drug." (Terr,
"Anaphylaxis and Urticaria" in Basic and Clinical
Immunology, p. 349) What all this means legally is
that even if the deceased suffered from an
anaphylactic shock, this, of itself, would not yet
establish the negligence of the appellee-physicians
for all that the law requires of them is that they
perform the standard tests and perform standard
procedures. The law cannot require them to predict
every possible reaction to all drugs administered.
The onus probandi was on the appellants to
establish, before the trial court, that the
appellee-physicians ignored standard medical
procedure, prescribed and administered medication
with recklessness and exhibited an absence of the
competence and skills expected of general
practitioners similarly situated. 39
Fourth. Petitioners correctly observe that the medical profession
is one which, like the business of a common carrier, is affected with public
interest. Moreover, they assert that since the law imposes upon common
carriers the duty of observing extraordinary diligence in the vigilance over
the goods and for the safety of the passengers, 40 physicians and
surgeons should have the same duty toward their patients. 41 They also
contend that the Court of Appeals erred when it allegedly assumed that the
level of medical practice is lower in Iligan City, thereby reducing the
standard of care and degree of diligence required from physicians and
surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common
carriers. The Civil Code provides:
Art. 1733. Common carriers, from the
nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of the
passengers transported by them, according to the
circumstances of each case. . . .
The practice of medicine is a profession engaged in only by
qualified individuals. It is a right earned through years of education, training,
and by first obtaining a license from the state through professional board
examinations. Such license may, at any time and for cause, be revoked by the
government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and
ethical rules which doctors have imposed upon themselves in recognition and
acceptance of their great responsibility to society. Given these safeguards,
there is no need to expressly require of doctors the observance of
"extraordinary" diligence. As it is now, the practice of medicine is already
conditioned upon the highest degree of diligence. And, as we have already
noted, the standard contemplated for doctors is simply the reasonable
average merit among ordinarily good physicians. That is reasonable diligence
for doctors or, as the Court of Appeals called it, the reasonable "skill and
competence . . . that a physician in the same or similar locality . . . should
apply."
WHEREFORE, the instant petition is DENIED and the decision of
the Court of Appeals is AFFIRMED.
SO ORDERED.
PROFESSIONAL SERVICES, INC., petitioner, vs. NATIVIDAD and
ENRIQUE AGANA, respondents.
[G.R. No. 126467. January 31, 2007.]
NATIVIDAD (Substituted by her children MARCELINO AGANA
III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS
AGANA, and RAYMUND AGANA) and ENRIQUE
AGANA, petitioners, vs. JUAN FUENTES, respondents. [G.R. No.
127590. January 31, 2007.] MIGUEL AMPIL, petitioner, vs.
NATIVIDAD AGANA and ENRIQUE AGANA, respondents.
SANDOVAL-GUTIERREZ, J p:
28
Hospitals, having undertaken one of mankind's most important and
delicate endeavors, must assume the grave responsibility of pursuing it with
appropriate care. The care and service dispensed through this high trust,
however technical, complex and esoteric its character may be, must meet
standards of responsibility commensurate with the undertaking to preserve
and protect the health, and indeed, the very lives of those placed in the
hospital's keeping. 1
Assailed in these three consolidated petitions for review
on certiorari is the Court of Appeals' Decision 2 dated September 6, 1996 in
CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with
modification the Decision 3 dated March 17, 1993 of the Regional Trial Court
(RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its
Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City
General Hospital (Medical City Hospital) because of difficulty of bowel
movement and bloody anal discharge. After a series of medical examinations,
Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the
Medical City Hospital, performed an anterior resection surgery on Natividad.
He found that the malignancy in her sigmoid area had spread on her left ovary,
necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the
consent of Natividad's husband, Enrique Agana, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took
over, completed the operation and closed the incision. CAcEaS
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984, the attending nurses
entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic)
done but to no avail continue
for closure."

On April 24, 1984, Natividad was released from the hospital. Her
hospital and medical bills, including the doctors' fees, amounted to
P60,000.00.
After a couple of days, Natividad complained of excruciating pain
in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it.
They told her that the pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist to examine the
cancerous nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went
to the United States to seek further treatment. After four months of
consultations and laboratory examinations, Natividad was told she was free
of cancer. Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still
suffering from pains. Two weeks thereafter, her daughter found a piece of
gauze protruding from her vagina. Upon being informed about it, Dr. Ampil
proceeded to her house where he managed to extract by hand a piece of
gauze measuring 1.5 inches in width. He then assured her that the pains
would soon vanish.
Dr. Ampil's assurance did not come true. Instead, the pains
intensified, prompting Natividad to seek treatment at the Polymedic
General Hospital. While confined there, Dr. Ramon Gutierrez detected the
presence of another foreign object in her vagina — a foul-smelling gauze
measuring 1.5 inches in width which badly infected her vaginal vault. A
recto-vaginal fistula had formed in her reproductive organs which forced
stool to excrete through the vagina. Another surgical operation was needed
to remedy the damage. Thus, in October 1984, Natividad underwent
another surgery.
On November 12, 1984, Natividad and her husband filed with the
RTC, Branch 96, Quezon City a complaint for damages against the
Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr.
Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged
that the latter are liable for negligence for leaving two pieces of gauze
inside Natividad's body and malpractice for concealing their acts of
negligence. DECcAS
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint for gross
negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as
Administrative Case No. 1690. The PRC Board of Medicine heard the case
only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases,
Natividad died and was duly substituted by her above-named children (the
Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the
Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and
malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby
rendered for the plaintiffs ordering the
defendants PROFESSIONAL SERVICES, INC., DR.
MIGUEL AMPIL and DR. JUAN FUENTES to pay to
the plaintiffs, jointly and severally, except in respect of
the award for exemplary damages and the interest
thereon which are the liabilities of defendants Dr. Ampil
and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of
the total of US$19,900.00 at the
rate of P21.60-US$1.00, as
reimbursement of actual
expenses incurred in the United
States of America;
b. The sum of P4,800.00 as travel taxes of
plaintiffs and their physician
daughter;
c. The total sum of P45,802.50, representing
the cost of hospitalization at
Polymedic Hospital, medical fees,
and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney's fees, the sum of P250,000.00;
29
5. Legal interest on items 1 (a), (b), and (c); 2; and 3
hereinabove, from date of filing of the
complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to
the Court of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a
motion for a partial execution of its Decision, which was granted in an Order
dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr.
Ampil and sold them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an
agreement with PSI and Dr. Fuentes to indefinitely suspend any further
execution of the RTC Decision. However, not long thereafter, the Aganas
again filed a motion for an alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and
issued the corresponding writ, prompting Dr. Fuentes to file with the Court of
Appeals a petition for certiorari and prohibition, with prayer for preliminary
injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the
Court of Appeals issued a Resolution 5 dated October 29, 1993 granting Dr.
Fuentes' prayer for injunctive relief. HEDSCc
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated
with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine
rendered its Decision 6 in Administrative Case No. 1690 dismissing the case
against Dr. Fuentes. The Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze inside Natividad's body;
and that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision
jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification
that the case against defendant-appellant Dr. Juan
Fuentes is hereby DISMISSED, and with the
pronouncement that defendant-appellant Dr. Miguel
Ampil is liable to reimburse
defendant-appellant Professional Services, Inc.,

whatever amount the latter will pay or had paid to
the plaintiffs-appellees, the decision appealed from
is hereby AFFIRMED and the instant
appeal DISMISSED.
Concomitant with the above, the petition
for certiorari and prohibition filed by herein
defendant-appellant Dr. Juan Fuentes in
CA-G.R. SP No. 32198 is herebyGRANTED and
the challenged order of the respondent judge dated
September 21, 1993, as well as the alias writ of
execution issued pursuant thereto are
herebyNULLIFIED and SET ASIDE. The bond
posted by the petitioner in connection with the writ of
preliminary injunction issued by this Court on
November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr.
Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was
denied in a Resolution 7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of
Appeals erred in holding that: (1) it is estopped from raising the defense
that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil;
and (3) it is not entitled to its counterclaim against the Aganas. PSI
contends that Dr. Ampil is not its employee, but a mere consultant or
independent contractor. As such, he alone should answer for his
negligence. CSDTac
In G.R. No. 126467, the Aganas maintain that the Court of
Appeals erred in finding that Dr. Fuentes is not guilty of negligence or
medical malpractice, invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie proofs that the operating
surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of
Appeals erred in finding him liable for negligence and
malpractice sans evidence that he left the two pieces of gauze in
Natividad's vagina. He pointed to other probable causes, such as: (1) it was
Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the
attending nurses' failure to properly count the gauzes used during surgery;
and (3) the medical intervention of the American doctors who examined
Natividad in the United States of America.
For our resolution are these three vital issues: first, whether the
Court of Appeals erred in holding Dr. Ampil liable for negligence and
malpractice; second, whether the Court of Appeals erred in absolving Dr.
Fuentes of any liability; and third, whether PSI may be held solidarily liable for
the negligence of Dr. Ampil.
I — G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court's
attention to other possible causes of Natividad's detriment. He argues that the
Court should not discount either of the following possibilities: first, Dr. Fuentes
left the gauzes in Natividad's body after performing hysterectomy; second, the
attending nurses erred in counting the gauzes; and third, the American
doctors were the ones who placed the gauzes in Natividad's body.
Dr. Ampil's arguments are purely conjectural and without basis.
Records show that he did not present any evidence to prove that the American
doctors were the ones who put or left the gauzes in Natividad's body. Neither
did he submit evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged negligence of Dr.
Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes') work and
found it in order.
The glaring truth is that all the major circumstances, taken together,
as specified by the Court of Appeals, directly point to Dr. Ampil as the
negligent party, thus:
First, it is not disputed that the surgeons
used gauzes as sponges to control the bleeding of the
patient during the surgical operation. EHTCAa
Second, immediately after the operation, the
nurses who assisted in the surgery noted in their report
that the ‘sponge count (was) lacking 2'; that such
anomaly was 'announced to surgeon' and that a
'search was done but to no avail' prompting Dr.
Ampil to 'continue for closure' . . . .
30
Third, after the operation, two (2) gauzes
were extracted from the same spot of the body of Mrs.
Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not
complete until the sponges are properly removed, and it is settled that the
leaving of sponges or other foreign substances in the wound after the incision
has been closed is at least prima facie negligence by the operating
surgeon. 8 To put it simply, such act is considered so inconsistent with due
care as to raise an inference of negligence. There are even legions of
authorities to the effect that such act is negligence per se. 9
Of course, the Court is not blind to the reality that there are times
when danger to a patient's life precludes a surgeon from further searching
missing sponges or foreign objects left in the body. But this does not leave
him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his patient's
abdomen, because of the dangers attendant upon delay, still, it is his legal
duty to so inform his patient within a reasonable time thereafter by
advising her of what he had been compelled to do. This is in order that she
might seek relief from the effects of the foreign object left in her body as her
condition might permit. The ruling in Smith v. Zeagler 10 is explicit, thus:
The removal of all sponges used is part of a
surgical operation, and when a physician or surgeon
fails to remove a sponge he has placed in his patient's
body that should be removed as part of the operation,
he thereby leaves his operation uncompleted
and creates a new condition which imposes upon
him the legal duty of calling the new condition to
his patient's attention, and endeavoring with the
means he has at hand to minimize and avoid
untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two
pieces of gauze. Worse, he even misled her that the pain she was
experiencing was the ordinary consequence of her operation. Had he
been more candid, Natividad could have taken the immediate and appropriate
medical remedy to remove the gauzes from her body. To our mind, what was
initially an act of negligence by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately,
medical negligence. To successfully pursue this kind of case, a patient must

only prove that a health care provider either failed to do something which a
reasonably prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have done; and
that failure or action caused injury to the patient. 11 Simply put, the
elements are duty, breach, injury and proximate causation. Dr. Ampil,
as the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividad's body before closure of the incision. When he
failed to do so, it was his duty to inform Natividad about it. Dr. Ampil
breached both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and another
surgery. That Dr. Ampil's negligence is the proximate cause 12 of
Natividad's injury could be traced from his act of closing the incision
despite the information given by the attending nurses that two pieces
of gauze were still missing. That they were later on extracted from
Natividad's vagina established the causal link between Dr. Ampil's
negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of
Natividad and her family. cEaCAH
II — G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case
against Dr. Fuentes on the ground that it is contrary to the doctrine of res
ipsa loquitur. According to them, the fact that the two pieces of gauze were
left inside Natividad's body is a prima facie evidence of Dr. Fuentes'
negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is
the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's prima facie case, and
present a question of fact for defendant to meet with an
explanation. 13 Stated differently, where the thing which caused the injury,
without the fault of the injured, is under the exclusive control of the
defendant and the injury is such that it should not have occurred if he,
having such control used proper care, it affords reasonable evidence, in
the absence of explanation that the injury arose from the defendant's want
of care, and the burden of proof is shifted to him to establish that he has
observed due care and diligence. 14
From the foregoing statements of the rule, the requisites for the
applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an
injury; (2) the thing which caused the injury was under the control and
management of the defendant; (3) the occurrence was such that in the
ordinary course of things, would not have happened if those who had control
or management used proper care; and (4) the absence of explanation by the
defendant. Of the foregoing requisites, the most instrumental is the "control
and management of the thing which caused the injury." 15
We find the element of "control and management of the thing which
caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur will
not lie.
It was duly established that Dr. Ampil was the lead surgeon during
the operation of Natividad. He requested the assistance of Dr. Fuentes only to
perform hysterectomy when he (Dr. Ampil) found that the malignancy in her
sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery
and thereafter reported and showed his work to Dr. Ampil. The latter
examined it and finding everything to be in order, allowed Dr. Fuentes to
leave the operating room. Dr. Ampil then resumed operating on Natividad.
He was about to finish the procedure when the attending nurses informed him
that two pieces of gauze were missing. A "diligent search" was conducted, but
the misplaced gauzes were not found. Dr. Ampil then directed that the
incision be closed. During this entire period, Dr. Fuentes was no longer in
the operating room and had, in fact, left the hospital. HTSaEC
Under the "Captain of the Ship" rule, the operating surgeon is the
person in complete charge of the surgery room and all personnel connected
with the operation. Their duty is to obey his orders. 16 As stated before, Dr.
Ampil was the lead surgeon. In other words, he was the "Captain of the
Ship." That he discharged such role is evident from his following
conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order; (3)granting Dr. Fuentes' permission
to leave; and (4) ordering the closure of the incision. To our mind, it was this
act of ordering the closure of the incision notwithstanding that two
pieces of gauze remained unaccounted for, that caused injury to
Natividad's body. Clearly, the control and management of the thing which
caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law,
hence, does not per se create or constitute an independent or separate
ground of liability, being a mere evidentiary rule. 17 In other words, mere
invocation and application of the doctrine does not dispense with the
31
requirement of proof of negligence. Here, the negligence was proven to have
been committed by Dr. Ampil and not by Dr. Fuentes.
III — G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development
of hospitals and the resulting theories concerning their liability for the
negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable
institutions, providing medical services to the lowest classes of society,
without regard for a patient's ability to pay. 18 Those who could afford medical
treatment were usually treated at home by their doctors. 19 However, the days
of house calls and philanthropic health care are over. The modern health care
industry continues to distance itself from its charitable past and has
experienced a significant conversion from a not-for-profit health care to
for-profit hospital businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital industry. One
important legal change is an increase in hospital liability for medical
malpractice. Many courts now allow claims for hospital vicarious liability under
the theories of respondeat superior, apparent authority, ostensible authority,
or agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts is
Article 2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this
Chapter. cHAaEC
A derivative of this provision is Article 2180, the rule governing
vicarious liability under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by
Article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom
one is responsible.
xxx xxx xxx

The owners and managers of an
establishment or enterprise are likewise responsible
for damages caused by their employees in the
service of the branches in which the latter are
employed or on the occasion of their functions.
Employers shall be liable for the damages
caused by their employees and household helpers
acting within the scope of their assigned tasks even
though the former are not engaged in any business
or industry.
xxx xxx xxx
The responsibility treated of in this article
shall cease when the persons herein mentioned
prove that they observed all the diligence of a good
father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an
employer, such as physicians, dentists, and pharmacists, are not
"employees" under this article because the manner in which they perform
their work is not within the control of the latter (employer). In other words,
professionals are considered personally liable for the fault or
negligence they commit in the discharge of their duties, and their
employer cannot be held liable for such fault or negligence. In the
context of the present case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or operation of
patients." 21
The foregoing view is grounded on the traditional notion that the
professional status and the very nature of the physician's calling preclude
him from being classed as an agent or employee of a hospital, whenever he
acts in a professional capacity. 22 It has been said that medical practice
strictly involves highly developed and specialized knowledge, 23 such that
physicians are generally free to exercise their own skill and judgment in
rendering medical services sans interference. 24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees are
deemed to subserve him in his ministrations to the patient and his actions
are of his own responsibility. 25
The case of Schloendorff v. Society of New York Hospital 26 was
then considered an authority for this view. The "Schloendorff doctrine"
regards a physician, even if employed by a hospital, as an independent
contractor because of the skill he exercises and the lack of control exerted
over his work. Under this doctrine, hospitals are exempt from the application of
the respondeat superior principle for fault or negligence committed by
physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with
the significant developments in medical care. Courts came to realize that
modern hospitals are increasingly taking active role in supplying and
regulating medical care to patients. No longer were a hospital's functions
limited to furnishing room, food, facilities for treatment and operation, and
attendants for its patients. Thus, in Bing v. Thunig, 27 the New York Court of
Appeals deviated from the Schloendorff doctrine, noting that modern hospitals
actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses,
administrative and manual workers. They charge patients for medical care and
treatment, even collecting for such services through legal action, if necessary.
The court then concluded that there is no reason to exempt hospitals from the
universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital
and the physicians is rendered inconsequential in view of our categorical
pronouncement inRamos v. Court of Appeals 28 that for purposes of
apportioning responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and
their attending and visiting physicians. This Court held:
"We now discuss the responsibility of the
hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff
with attending and visiting "consultants," who are
allegedly not hospital employees, presents problems in
apportioning responsibility for negligence in medical
malpractice cases. However, the difficulty is more
apparent than real. HIACac
In the first place, hospitals exercise
significant control in the hiring and firing of
consultants and in the conduct of their work within
the hospital premises. Doctors who apply for
'consultant' slots, visiting or attending, are
required to submit proof of completion of
residency, their educational qualifications,
generally, evidence of accreditation by the
appropriate board (diplomate), evidence of
32
fellowship in most cases, and references. These
requirements are carefully scrutinized by
members of the hospital administration or by a
review committee set up by the hospital who either
accept or reject the application. . . .
After a physician is accepted, either as a
visiting or attending consultant, he is normally
required to attend clinico-pathological
conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and
patient audits and perform other tasks and
responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a
specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns
and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the
minimum standards acceptable to the hospital or
its peer review committee, is normally politely
terminated. caTESD
In other words, private hospitals, hire,
fire and exercise real control over their attending
and visiting 'consultant' staff. While 'consultants'
are not, technically employees, . . . , the control
exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee relationship, with the
exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an
employer-employee relationship in effect exists
between hospitals and their attending and visiting
physicians."
But the Ramos pronouncement is not our only basis in sustaining
PSI's liability. Its liability is also anchored upon the agency principle
of apparent authority oragency by estoppel and the doctrine of corporate

negligence which have gained acceptance in the determination of a
hospital's liability for negligent acts of health professionals. The present
case serves as a perfect platform to test the applicability of these doctrines,
thus, enriching our jurisprudence. TaISEH
Apparent authority, or what is sometimes referred to as
the "holding out" theory, or doctrine of ostensible agency or agency by
estoppel, 29 has its origin from the law of agency. It imposes liability, not
as the result of the reality of a contractual relationship, but rather because
of the actions of a principal or an employer in somehow misleading the
public into believing that the relationship or the authority exists. 30 The
concept is essentially one of estoppel and has been explained in this
manner:
"The principal is bound by the acts of his
agent with the apparent authority which he
knowingly permits the agent to assume, or which he
holds the agent out to the public as possessing. The
question in every case is whether the principal has
by his voluntary act placed the agent in such a
situation that a person of ordinary prudence,
conversant with business usages and the nature of
the particular business, is justified in presuming that
such agent has authority to perform the particular
act in question. 31
The applicability of apparent authority in the field of hospital
liability was upheld long time ago in Irving v. Doctor Hospital of Lake Worth,
Inc. 32 There, it was explicitly stated that "there does not appear to be
any rational basis for excluding the concept of apparent authority
from the field of hospital liability." Thus, in cases where it can be shown
that a hospital, by its actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted treatment from that
physician in the reasonable belief that it is being rendered in behalf of the
hospital, then the hospital will be liable for the physician's negligence.
Our jurisdiction recognizes the concept of an agency by
implication or estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or
implied from the acts of the principal, from his
silence or lack of action, or his failure to repudiate
the agency, knowing that another person is acting
on his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical City
Hospital the names and specializations of the physicians associated or
accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with
the Court of Appeals' conclusion that it "is now estopped from passing all
the blame to the physicians whose names it proudly paraded in the
public directory leading the public to believe that it vouched for their
skill and competence." Indeed, PSI's act is tantamount to holding out to the
public that Medical City Hospital, through its accredited physicians, offers
quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and
publicly advertising their qualifications, the hospital created the impression
that they were its agents, authorized to perform medical or surgical services
for its patients. As expected, these patients, Natividad being one of them,
accepted the services on the reasonable belief that such were being rendered
by the hospital or its employees, agents, or servants. The trial court correctly
pointed out:
. . . regardless of the education and
status in life of the patient, he ought not be
burdened with the defense of absence of
employer-employee relationship between the
hospital and the independent physician whose
name and competence are certainly certified to the
general public by the hospital's act of listing him
and his specialty in its lobby directory, as in the
case herein. The high costs of today's medical and
health care should at least exact on the hospital
greater, if not broader, legal responsibility for the
conduct of treatment and surgery within its facility
by its accredited physician or surgeon, regardless
of whether he is independent or employed." 33
The wisdom of the foregoing ratiocination is easy to discern.
Corporate entities, like PSI, are capable of acting only through other
individuals, such as physicians. If these accredited physicians do their job well,
the hospital succeeds in its mission of offering quality medical services and
thus profits financially. Logically, where negligence mars the quality of its
services, the hospital should not be allowed to escape liability for the acts of its
ostensible agents. DCSTAH
We now proceed to the doctrine of corporate
negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for
negligence and malpractice is that PSI as owner, operator and manager of
33
Medical City Hospital, "did not perform the necessary supervision nor
exercise diligent efforts in the supervision of Drs. Ampil and Fuentes
and its nursing staff, resident doctors, and medical interns who assisted
Drs. Ampil and Fuentes in the performance of their duties as
surgeons." 34 Premised on the doctrine of corporate negligence, the trial
court held that PSI is directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the
judicial answer to the problem of allocating hospital's liability for the negligent
acts of health practitioners, absent facts to support the application
of respondeat superior or apparent authority. Its formulation proceeds from
the judiciary's acknowledgment that in these modern times, the duty of
providing quality medical service is no longer the sole prerogative and
responsibility of the physician. The modern hospitals have changed structure.
Hospitals now tend to organize a highly professional medical staff whose
competence and performance need to be monitored by the hospitals
commensurate with their inherent responsibility to provide quality medical
care. 35
The doctrine has its genesis in Darling v. Charleston Community
Hospital. 36 There, the Supreme Court of Illinois held that "the jury could
have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to
require a consultation with or examination by members of the hospital
staff; and failing to review the treatment rendered to the patient.". . . On
the basis of Darling, other jurisdictions held that a hospital's corporate
negligence extends to permitting a physician known to be incompetent
to practice at the hospital. 37 With the passage of time, more duties were
expected from hospitals, among them: (1) the use of reasonable care in the
maintenance of safe and adequate facilities and equipment; (2) the selection
and retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within its walls;
and (4) the formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients. 38 Thus, in Tucson Medical
Center, Inc. v. Misevich, 39 it was held that a hospital, following the doctrine of
corporate responsibility, has the duty to see that it meets the standards of
responsibilities for the care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in Bost v.
Riley, 40 the court concluded that a patient who enters a hospital does so with
the reasonable expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to monitor and

oversee the treatment prescribed and administered by the physicians
practicing in its premises.
In the present case, it was duly established that PSI operates the
Medical City Hospital for the purpose and under the concept of providing
comprehensive medical services to the public. Accordingly, it has the duty
to exercise reasonable care to protect from harm all patients admitted
into its facility for medical treatment. Unfortunately, PSI failed to perform
such duty. The findings of the trial court are convincing, thus:
. . . PSI's liability is traceable to its
failure to conduct an investigation of the matter
reported in the nota bene of the count nurse.
Such failure established PSI's part in the dark
conspiracy of silence and concealment about
the gauzes. Ethical considerations, if not also legal,
dictated the holding of an immediate inquiry into the
events, if not for the benefit of the patient to whom
the duty is primarily owed, then in the interest of
arriving at the truth. The Court cannot accept that
the medical and the healing professions, through
their members like defendant surgeons, and their
institutions like PSI's hospital facility, can callously
turn their backs on and disregard even a mere
probability of mistake or negligence by refusing or
failing to investigate a report of such seriousness as
the one in Natividad's case. ECaScD
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on
Natividad with the assistance of the Medical City Hospital's staff, composed
of resident doctors, nurses, and interns. As such, it is reasonable to
conclude that PSI, as the operator of the hospital,
has actualor constructive knowledge of the procedures carried
out,particularly the report of the attending nurses that the two pieces
of gauze were missing. In Fridena v. Evans, 41 it was held that a
corporation is bound by the knowledge acquired by or notice given to its
agents or officers within the scope of their authority and in reference to a
matter to which their authority extends. This means that the knowledge of
any of the staff of Medical City Hospital constitutes knowledge of PSI. Now,
the failure of PSI, despite the attending nurses' report, to investigate and
inform Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or supervise
all persons who practice medicine within its walls, it also failed to
take an active step in fixing the negligence committed. This renders
PSI, not only vicariously liable for the negligence of Dr. Ampil under Article
2180 of the Civil Code, but also directly liable for its own negligence under
Article 2176. In Fridena, the Supreme Court of Arizona held:
. . . In recent years, however, the duty of care
owed to the patient by the hospital has expanded. The
emerging trend is to hold the hospital responsible
where the hospital has failed to monitor and review
medical services being provided within its walls.
See Kahn Hospital Malpractice Prevention, 27 De Paul
Rev. 23 (1977).
Among the cases indicative of the 'emerging
trend' is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P.
2d 335 (1972). In Purcell, the hospital argued that it
could not be held liable for the malpractice of a medical
practitioner because he was an independent contractor
within the hospital. The Court of Appeals pointed out
that the hospital had created a professional staff
whose competence and performance was to be
monitored and reviewed by the governing body of
the hospital, and the court held that a hospital
would be negligent where it had knowledge or
reason to believe that a doctor using the facilities
was employing a method of treatment or care
which fell below the recognized standard of care.
Subsequent to the Purcell decision, the
Arizona Court of Appeals held that a hospital has
certain inherent responsibilities regarding the
quality of medical care furnished to patients within
its walls and it must meet the standards of
responsibility commensurate with this
undertaking. Beeck v. Tucson General Hospital, 18
Ariz. App. 165, 500 P. 2d 1153 (1972). This court has
confirmed the rulings of the Court of Appeals that a
hospital has the duty of supervising the competence of
the doctors on its staff. . . . .
xxx xxx xxx
In the amended complaint, the plaintiffs did
plead that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that the
34
negligence of the defendants was the proximate cause
of the patient's injuries. We find that such general
allegations of negligence, along with the evidence
produced at the trial of this case, are sufficient to
support the hospital's liability based on the theory
of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr.
Ampil for damages, let it be emphasized that PSI, apart from a general denial
of its responsibility, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the accreditation and supervision of the
latter. In neglecting to offer such proof, PSI failed to discharge its burden under
the last paragraph of Article 2180 cited earlier, and, therefore, must be
adjudged solidarily liable with Dr. Ampil. Moreover, as we have discussed, PSI
is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and
care of a patient, the law imposes on him certain obligations. In order to
escape liability, he must possess that reasonable degree of learning, skill and
experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the application of
his knowledge, and exert his best judgment. aEACcS
WHEREFORE, we DENY all the petitions and AFFIRM the
challenged Decision of the Court of Appeals in CA-G.R. CV No. 42062 and
CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.
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