From civil law outline 2008: 1. Article 19 Abuse of Right - Rellosa v.

. Pellosis, August 9, 2001 This provision is not just a declaration of principle for it can, in itself constitute, hen dul! ignored, a valid cause of action. - "ven in the e#ercise of a right, if there is an abuse of right, there $a! be liabilit! for da$ages because of the principle of abuse of right. %&ela!o v. 'hell(. - Re)uisites* 1. right 2. dut! +. violation of such right ,n the e#ercise of one-s right, and in the perfor$ance of one-s obligation, a person should not discard the nor$s of hu$an conduct provided for b! la . ,f he causes da$age to another even in the e#ercise of such right, he is liable for da$ages. There is an abuse of right if it is e#ercised onl! for the purpose of prejudicing another. %.'/0 v. 0atalan, 1ctober 12, 2003( 45 ")uit! ,nc. v. &alen6ona, 7une +0, 2008 ,f a co$pan! undul! pre ter$inates a coaching contract to the e#tent of violating the principle of $utualit! of contracts, there is abuse of right. ,n this case, the pre ter$ination as not based on a legal ground, the co$pan! failed to e#ercise it in a legiti$ate $anner thus, causing da$age to the coach. The co$pan! is liable for da$ages.

2. Article 21

- This la as put into the 0ivil 0ode in order to solve a void in the la as there as a perception that an act $a! injure another person-s rights, !et, the sa$e $a! no longer be cri$inall! punished. %/atara v. 9arcos(. .ence, if the act is contrar! to $orals, the sa$e $a! be co$pensated b! an a ard of $oral da$ages. A $ere breach of pro$ise to $arr! is not an actionable rong. There $ust be an act independent of the breach in order that it $a! be actionable. :i;e arranging the edding and $a;ing the preparations then, one part! does not appear on the date set for the edding. - People v. 9anuel, 4.R. <o. 1=8232, <ove$ber 29, 2008 ,f a $an conceals the fact that he is $arried> proposes $arriage to a o$an> goes ith his parents to the house of the parents of the o$an to assure the$ that he is single> appl! for a license to $arr! and $a;e it appear that he is single> purports to be single during their coverture> abandons her> the o$an can file a co$plaint for biga$!, ith pra!er for $oral da$ages. The totalit! of his acts hich are i$$oral and illegal constitutes the basis for his liabilit! for $oral da$ages. .e deprived the o$an of a legiti$ate clai$ of coverture ith a $an ho is la full! $arried to her. +. Article +9, 30 - /uenventura v. /uenaventura, 9arch +1, 2008 - Action for nullit! due to ps!chological incapacit! - <o $oral da$ages to be a arded unless there is evidence that the $arriage as done deliberatel! and ith $alice b! the part! ho had ;no ledge of his disabilit! and illfull! concealed it

- 'ince ps!chological incapacit! $eans that one is trul! incognitive of the basic $arital covenants that one $ust discharge or assu$e, it re$oves the basis for the contention that the defendant purposel! deceived the other spouse. <o basis for a ard of $oral da$ages. 3. Articles 11=?> 11=2 - ,n obligation to do, it $a! be done if the other part! does not do it. ,f poorl! done, it can be undone. ,n both, there is liabilit! for da$ages. The reason is that, there is dela! or contravention of the tenor of the obligation %Art. 11?0(. @inds of Penalt! 0lauses %Art 122=( 1. i$posed due to breach - to enforce 2. inde$nit! for da$ages %:oren6o 'hipping v. /7 9arthel ,nt-l., ,nc. v. <ove$ber 19, 2003(. - need to distinguish if there is non perfor$ance Article 18?1, <00 4ood!ear Phils., ,nc. v. '!, et al. 4.R. <o. 183883, <ove$ber 9, 2008 An action for da$ages for a breach of i$plied arranties $ust be brought ithin = $onths fro$ the deliver! of the thing sold. The vehicle is understood to have been delivered hen it as placed under his control or possession. ARTICLE 1561

,f a $otor vehicle is sold but there

as a hidden defect, the vendee arrant! ithin = $onths

$ust file an action for da$ages for breach of the

fro$ the deliver! of the thing sold. After = $onths, the action prescribes. ,n this case, the action as filed $ore than 19 $onths. %Ae 4u6$an v. To!ota 0ubao, ,nc., <ove$ber 29, 200=(. a. ,f there is an a ard of a su$ of $one! but in the for$ of da$ages, the interest is =B. /ut fro$ the ti$e of the finalit! of the judg$ent up to the ti$e of pa!$ent, it beco$es a forbearance of $one!, it earns 12B. %"astern 'hippers :ines v. 0A> A4 C P of 9anila> R0/0> &icente v. Planters Aev. /an;, 7anuar! 28, 200+(. ,n /'P v. 'ta. 9aria, 7anuar! 1+, 200+, here there as suppl! of labor $aterial and a judg$ent relative thereto, the interest is =B. Reason is because it is not a forbearance of $one!. 8. Articles 21?= C 21?? Pro#i$ate 0ause 0ases a. :a$bert v. .eirs of 0astillon, et al., 4.R. <o. 1=0?09, 5ebruar! 2+, 2008 The abrupt and sudden left turn b! the driver of a jeep ithout first establishing his right of a! as the pro#i$ate cause of the $ishap hich resulted in the death of the $otorc!cle driver. ,f the deceased is guilt! of contributor! negligence, the a ard of da$ages $a! be reduced. b. <P0 v. 0A, et al., 4.R. <o. 123+?2, 9arch 2, 2008 The negligence of the <P0 or its inabilit! to $aintain the level of ater in the da$ caused da$age to the properties of the plaintiffs. %Aelsan Transport :ines, ,nc. v. 0A, 1ctober 1, , 200+(. =. Re$edies in <egligence 0ases
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a. 'ue the accused under Article 100, RP0 for civil liabilit! ex delicto. b. 'ue under Article 21?=, <00 for ex quasi delicto. c. 9otion under Article 10+, RP0 for the subsidiar! liabilit! under the RP0. /ut there shall be no double recover!. %Rafael Re!es Truc;ing v. 0A, 4.R. <o. 129029, April +, 2000(. ?. :iabilit! Dnder 0ontractual Tort a. Air 5rance v. 0arrascoso, 'epte$ber 2+, 19== As a rule, there can be no liabilit! for tort if there is a contract. The e#ception is hen there is an act that violates the contract and the act is independent of the contract. Article 2120 %'ee* 212, 219, 221, 5a$il! 0ode(. An e$plo!er-s liabilit! based on a )uasiEdelict is pri$ar! and direct, hile the e$plo!er-s liabilit! based on a delict is $erel! subsidiar!. %People vs. 5abro, 9+ '0RA 200 %19?9(. The ords Fpri$ar! and directG as contrasted ith Fsubsidiar!G, refer to the re$ed! provided b! la for enforcing the obligation rather than to the character and li$its of the obligation. %++A Hords and Phrases 218 %19?, "d.(. Although liabilit! under Article 2120 originates fro$ negligent act of the e$plo!ee, the aggrieved part! $a! sue the e$plo!er directl!. Hhen an e$plo!ee causes da$age, the la presu$es that the e$plo!er has hi$self co$$itted an act of negligence in not preventing or avoiding the da$age. This is the fault that the la conde$ns. Hhile the e$plo!er is civill! liable in a subsidiar! capacit! for the e$plo!ee-s cri$inal negligence, the e$plo!er is also civill! liable directl! and separatel! for his o n civil negligence in failing to e#ercise due diligence in selecting and supervising his e$plo!ee. The idea that the e$plo!er-s liabilit! is solel! subsidiar! is rong. %/arredo vs. 4arcia, supra.(.

,t has been consistentl! ruled that the registered o ner of an! vehicle is directl! and pri$aril! responsible to the public and third persons hile it is being operated. The rationale behind such doctrine as e#plained a! bac; in 198? in Erezo vs. Jepte here it as said that the principle upon hich this doctrine is based is that in dealing ith vehicles registered under the Public 'ervice :a , the public has the right to assu$e or presu$e that the registered o ner is the actual o ner thereof, for it ould be difficult for the public to enforce the actions that the! $a! have for injuries caused to the$ b! the vehicles being negligentl! operated if the public should be re)uired to prove ho the actual o ner is. .o ould the public or third persons ;no against ho$ to enforce their rights in case of subse)uent transfers of the vehiclesI He do not i$pl! b! his doctrine, ho ever, that the registered o ner $a! not recover hatever a$ount he had paid b! virtue of his liabilit! to third persons fro$ the person to ho$ he had actuall! sold, assigned or conve!ed the vehicle. %&illanueva vs. Ao$ingo, et al., 4.R. <o. 1332?3, 'epte$ber 20, 2003(. 2. :iabilit! of "$plo!ers in 0ivil 0ases 5or the Acts of "$plo!ees. ART,0:"' 2120 > 21?= "$plo!er is liable for the negligent acts of the e$plo!ee if the for$er fails to prove the diligence of a good father of a fa$il! in the selection and supervision of the e$plo!ee the liabilit! is solidar!. %9ercur! Arug 0orp. v. 'ps. .uang, 7une 2?, 200?(. a. &illanueva v. Ao$ingo, et al., 4.R. <o. 1332?3, 'epte$ber 20, 2003 %/asilio v. 0A, 7anuar! 12, 2000( The registered o ner of a vehicle is liable for da$ages regardless of hether the driver is authori6ed or not. ,n fact, the liabilit! is pri$ar! in nature. %'ec. ")uitable :easing 0orp. v. 'u!o$, 'epte$ber 8, 2002> 54D ,nsurance 0orp. v. 0A> Auavit v. 0A, 1?+ '0RA 390> 9P0 Agro Agricultural 0orp. v. &da. de 0aldo, 1+2 '0RA 10> Aguilar v. 0o$. 'avings /an;, 7une 29, 2001> Ple!to v. :o$bo!, 7une 1=, 2003(. "ven if the vehicle as sold but the bu!er did not register the driver of the
6

ne o ner is presu$ed to be the e$plo!ee of the for$er o ner ho is liable. The purpose of car registration is to deter$ine the person ho is liable if there is an accident. This is to prevent difficult! of the public in tr!ing to deter$ine ho is liable. b. 0ere6o v. Tua6on, 9arch 2+, 2003 The liabilit! of the e$plo!er and the e$plo!ee is solidar!. "ven if the e$plo!ee is not served ith su$$ons, trial can be held. ,f he cannot prove the diligence of a good father of a fa$il!, then, he is solidar! liable. %'ps. .ernande6, et al. v. 'ps. Aolor, et al., 4.R. <o. 1=022=, 7ul! +0, 2003(. c. 0astile# ,ndustrial 0orp. v. &as)ue6, 4.R. <o. 1+22==, Aece$ber 21, 1999 The e$plo!er is not liable if the e$plo!ee is not perfor$ing his tas; at the ti$e of the accident. This is especiall! so because it as alread! out of co$pan! ti$e and pre$ises. The e#ception is hen the e$plo!ee is running an errand for the e$plo!er. d. 5ilipinas /roadcasting <et or;, ,nc. v. Ago 9edical and "ducational 0enter /icol 0hristian 0ollege of 9edicine, 4.R. <o. 131993, 7anuar! 1?, 2008 7oint tortfeasors are jointl! and severall! liable for the tort the! co$$it. An e$plo!er and an e$plo!ee are solidaril! liable for a defa$ator! state$ent b! the e$plo!ee ithin the course and scope of his e$plo!$ent. %'ee* Aoctrine of 0orporate :iabilit! in P', case(. 1ther cases* %'olidban; 0orp. v. 9indanao 5erroall! 0orp., et al., 4.R. <o. 18+8+8, 7ul! 22, 2008(. e. Aoctors are protected b! a special rule of la . The! are not guarantors of care. The! do not even arrant a good result. The! are not insurers against $ishaps or unusual
7

conse)uences. The! are not liable for honest $ista;es of judg$ent. Hhether the! co$$itted ine#cusable lac; of precaution in the treat$ent of their patients is to be deter$ined according to the standard of care b! other $e$bers of the profession of good standing. %Ar. <inevetch 0ru6 v. 0A, 222 '0RA 122( Dnder the caption of the ship doctrine, the surgeon is li;ened to a captain of the ship ho $ust be responsible for the safet! of the cre and the passengers. .e is responsible for ever!thing that goes rong ithin the four corners of the operating roo$. %Ra$os v. 0A, Aece$ber 29, 1999(. f. A doctor ho is a consultant in a hospital has no e$plo!ee e$plo!er relationship. .ence, the hospital is not solidaril! liable ith the doctor because 1. the hospital does not hire or engage the services of a consultant, but $erel! accredits and grants hi$ the privilege of $aintaining a clinic or ad$itting patients upon a sho ing of his )ualifications> 2. it is not the hospital but the patient ho pa!s the consultant-s fee for services rendered> +. the hospital does not dis$iss a consultant but $erel! loses his accreditation b! the hospital> 3. hen the doctor refers a patient to a hospital, it is not the latter, but the doctor ho prescribes the treat$ent to be given to the patient. %Ra$os v. 0A, Aece$ber 29, 1999(. g. The contract bet een the consultant and the patient is separate and distinct fro$ the contract bet een the hospital and the patient. ,n the first, it has for its object, the rendition of $edical services b! the consultant to the patient. ,n the second, it concerns the provision b! the hospital of facilities and services b! its staff li;e nurses and laborator! personnel necessar! for the proper treat$ent of the patient. %Ra$os v. 0A, Aece$ber 29, 1999(.

Captain of the Ship Rule. Dnder the F0aptain of the 'hipG rule, the operating surgeon is the person in co$plete charge of the surger! roo$ and all personnel connected ith the operation. Their dut! is to obe! his orders. %Rural "ducational Assn. v. /ush, 32 Tenn. App. +3, 292 '.H. 2d ?=1 %198=((. Dntil the $idEnineteenth centur!, hospitals ere generall! charitable institutions, providing $edical services to the lo est classes of societ!, ithout regard for a patient-s abilit! to pa!. Those ho could afford $edical treat$ent ere usuall! treated at ho$e b! their doctors. .o ever, the da!s of house calls and philanthropic health care are over. The $odern health care industr! continues to distance itself fro$ its charitable past and has e#perienced a significant conversion fro$ a notEforEprofit health care to forEprofit hospital business. 0onse)uentl!, significant changes in health la have acco$panied the businessErelated changes in the hospital industr!. 1ne i$portant legal change is an increase in hospital liabilit! for $edical $alpractice. 9an! courts no allo clai$s for hospital vicarious liabilit! under the theories of resondeat superior, apparent authorit!, ostensible authorit!, or agenc! b! estoppel. Professionals engaged b! an e$plo!er, such as ph!sicians, dentists, and phar$acists, are not Fe$plo!eesG under this article because the $anner in hich the! perfor$ their or; is not ithin the control of the latter %e$plo!er(. ,n other ords, professionals are considered personall! liable for the fault or negligence the! co$$it in the discharge of their duties, and their e$plo!er cannot be held liable for such fault or negligence. ,n the conte#t of the present case, Fa hospital cannot be held liable for the fault or negligence of a ph!sician or surgeon in the treat$ent or operation of patients. 'uch vie is grounded on the traditional notion that the professional status and the ver! nature of the ph!sician-s calling preclude hi$ fro$ being classed as an agent or e$plo!ee of a hospital, henever he acts in a professional capacit!. ,t has been said that $edical practice strictl! involves
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highl! developed and speciali6ed ;no ledge, such that ph!sicians are generall! free to e#ercise their o n s;ill and judg$ent in rendering $edical services sans interference. .ence, hen a doctor practices $edicine in a hospital setting, the hospital and its e$plo!ees are dee$ed to subserve hi$ in his $inistrations to the patient and his actions are of his o n responsibilit!. Liability of hospitals and visiting consultants. ,n our shores, the nature of the relationship bet een the hospital and the ph!sicians is rendered inconse)uential in vie of our categorical pronounce$ent in Ramos v. Court of Appeals, that for purposes of apportioning responsibilit! in $edical negligence cases, an e$plo!erEe$plo!ee relationship in effect e#ists bet een hospitals and their attending and visiting ph!sicians. Thus, it as held* FHe no discuss the responsibilit! of the hospital in this particular incident. The uni)ue practice %a$ong private hospitals( of filling up specialist staff ith attending and visiting FconsultantsG, ho are allegedl! not hospital e$plo!ees, presents proble$s in apportioning responsibilit! for negligence in $edical $alpractice cases. .o ever, the difficult! is $ore apparent than real. ,n the first place, hospitals e#ercise significant control in the hiring and firing of consultants and in the conduct of their or; ithin the hospital pre$ises. Aoctors ho appl! for Jconsultantslots, visiting or attending, are re)uired to sub$it proof of co$pletion of residenc!, their educational )ualifications, generall!, evidence of accreditation b! the appropriate board %diplo$ate(, evidence of fello ship in $ost cases, and references. These re)uire$ents are carefull! scrutini6ed b! $e$bers of the hospital ad$inistration or b! a revie co$$ittee set up b! the hospital ho either accept or reject the application. After a ph!sician is accepted, either as a visiting or attending consultant, he is nor$all! re)uired to attend clinicoEpathological
10

conferences, conduct bedside rounds for cler;s, interns and residents, $oderate grand rounds and patient audits and perfor$ other tas;s and responsibilities, for the privilege of being able to $aintain a clinic in the hospital, andKor for the privilege of ad$itting patients into the hospital. ,n addition to these, the ph!sician-s perfor$ance as a specialist is generall! evaluated b! a peer revie co$$ittee on the basis of $ortalit! and $orbidit! statistics, and feedbac; fro$ patients, nurses, interns and residents. A consultant re$iss in his duties, or a consultant ho regularl! falls short of the $ini$u$ standards acceptable to the hospital or its peer revie co$$ittee, is nor$all! politel! ter$inated. ,n other ords, private hospitals, hire, fire and e#ercise real control over their attending and visiting Jconsultant- staff. Hhile Jconsultants- are not, technicall! e$plo!ees, # # # , the control e#ercised, the hiring, and the right to ter$inate consultants all fulfill the i$portant hall$ar;s of an e$plo!erEe$plo!ee relationship, ith the e#ception of the pa!$ent of ages. ,n assessing hether such a relationship in fact e#ists, the control test is deter$ining. Accordingl!, on the basis of the foregoing, e rule that for the purpose of allocating responsibilit! in $edical negligence cases, an e$plo!erEe$plo!ee relationship in effect e#ists bet een hospitals and their attending and visiting ph!sicians.G 54D ,ns. 0orp. v. 0A, 9arch 2+, 1992 A rent a car co$pan! is not liable if it allo s the lessee to drive. There is no vinculum juris bet een the$. The lessee is liable alone. The responsibilit! of e$plo!ers for the negligence of their e$plo!ees in the perfor$ance of their duties is pri$ar!. The injured part! $a! recover fro$ the e$plo!er directl!, regardless of the solvenc! of the e$plo!ee. 0ivil liabilit! of "$plo!ers for the 0ri$inal Acts of the "$plo!ees

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a. Lonada v. 0A, et al., 4.R. <o. 112+3=, 9arch 29, 199= The e$plo!er is $erel! liable subsidiaril! if the e$plo!ee is sued cri$inall! and convicted. 5or the civil liabilit! to attach, the e$plo!ee $ust be insolvent. The e$plo!er can interpose the defense that he is not an e$plo!er> that the e$plo!ee is not insolvent> that he did not act ithin the scope of his duties. :iabilit! of Parents for the acts of their children a. :ibi v. 0A, 4.R. <o. ?0290, 'epte$ber 12, 1992 The parents of a $inor ho ;illed his girl friend are pri$aril! liable for the act of their $inor son. There ere pieces of evidence of their negligence. 0ase reference* a. 't. 9ar!-s Acade$! of Aipolog v. 0arpetanos b. Ta$argo v. 0A The '0 held that the adopting parents cannot be liable for the acts of the $inor child subject of the adoption. The biological parents are liable because the! still have supervision and custod! of the child. &icarious liabilit! 9acario Ta$argo v. 0A, 209 '0RA 812 The liabilit! of parents for the tort co$$itted b! their $inor children living ith the$ is based on parental authorit!. The la presu$es that hen the $inor co$$its a tortuous act, the parents are negligent. Parental liabilit! is anchored upon parental authorit! couple ith presu$ed parental dereliction in the discharge of the duties acco$pan!ing such authorit!. Parental dereliction is onl! presu$ed and the presu$ption can be one b! evidence that the parents have e#ercised the diligence of good father of a fa$il! to prevent the da$age.

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The rule is true ith respect to the teacher, school, and ad$inistrators. %A$adora v. 0A, 1=0 '0RA 2?3(. P'/A v. 0A, 208 '0RA ?29 The person ho ;illed a student as not a student of the school. Article 2120 re)uires that the da$age done should have been inflicted b! a student, for the school to be liable. 9. :iabilit! for Aa$ages i. <i;;o .otel 9anila 4arden, et al. v. Roberto Re!es, alias FA$a! /isa!aG, 4.R. <o. 183289, 5ebruar! 22, 2008 The doctrine of volenti non fit injuria %to hich a person asserts is not estee$ed in la as injur!( refers to a self inflicted injur! or to the consent to injur! hich precludes the recover! of da$ages b! one ho has ;no ingl! and voluntaril! e#posed hi$self to danger, even if he is negligent in doing so. Article 19 of the <e 0ivil 0ode co$$onl! ;no n as the principle of abuse of right, is not a parracea for all hu$an hurts and social grievances. Hhen a right is e#ercised in a $anner hich does not confor$ ith the standards in Article 19 and results in da$age to another, a legal rong is thereb! co$$itted for hich the rongdoer $ust be responsible. The object of this article is to set certain standards hich $ust be observed not onl! in the perfor$ance of dut! but even in the e#ercise of a right. ii. <oel /uenaventura v. 0A, et al., 4.R. <o. 12?+88, 9arch +1, 2008 ,f a $arriage is declared void on the ground of ps!chological incapacit!, the defendant cannot be $ade liable for $oral da$ages, as a rule. The a ard of $oral da$ages should be predicated, not on the $ere act of entering into the $arriage, but on specific evidence that
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it as done deliberatel! and ith $alice b! a part! ho had ;no ledge of his or her disabilit! and illfull! concealed the sa$e. 9anuel v. People, <ove$ber 29, 2008 ,f a $an represents hi$self to be single> courts a o$an> presents his parents to the parents of the o$an assure the$ that he is single> appl! ith the o$an for a $arriage license and pretends to be single but in fact he is $arried> abandons the o$an later, he is liable for $oral da$ages. The totalit! of his acts constitutes violation of Articles 19, 20, 21, <00 Articles 2219 C 221? Re)uisites for a ard of $oral da$ages 1. injur! sustained b! the clai$ant 2. culpable act or o$ission factuall! established +. rongful act is the pro#i$ate cause of the injur! 3. a ard is predicated on Article 2219 %"#pert Travel Tours v. 0A, 7une 28, 1999(. A corporation, being a juridical person, it cannot suffer fro$ ounded feelings, serious an#iet!, $ental anguish or $oral shoc;. Article 2219, paragraph ? of the 0ivil 0ode e#pressl! authori6es the recover! of $oral da$ages in cases of libel, slander or an! other for$ of defa$ation. The la , ho ever, does not )ualif! hether the plaintiff s a natural or juridical person. Therefore, a juridical person such as a corporation can validl! co$plain for libel or an! other for$ of defa$ation and clai$ for $oral da$ages. %5ilipinas /roadcasting <et or;, ,nc. vs. Ago 9edical and "ducational 0enter /icol 0hristian 0ollege of 9edicine, et al., 4.R. <o. 131993, 7anuar! 1?, 2008(.

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As a rule, docu$entar! evidence should be presented to substantiate the clai$ for da$ages for the loss of earning capacit!. The onl! e#ceptions are* %1( hen the deceased is selfEe$plo!ed earning less than $ini$u$ age under current labor la s> %2( hen the deceased is e$plo!ed as a dail! age or;er earning less than the $ini$u$ age under the current la s. ,n these t o instances, judicial notice $a! be ta;en of the fact that in the deceased-s line of or; no docu$entar! evidence is available. .ere the lo er courts co$puted the a ard of co$pensator! da$ages for the loss of earning capacit! onl! on the basis of the testi$on! of the husband. The a ard is erroneous because the deceased earnings do not fall ithin the e#ceptions. %&ictor! :iner, ,nc. vs. 4a$$ad, et al., 4.R. <o. 189=+=, <ove$ber 28, 2003(. %'ee also* People vs. 9allari, 4.R. <o. 13899+, 7une 1?, 200+> People vs. 0araig, 4.R. <o. 11=223, 9arch 22, 2003> People vs. Auetes, et al., 4.R. <o. 133892, 5ebruar! =, 2003(. <o$inal Aa$ages <o$inal da$ages cannot co e#ist ith actual and co$pensator!. %Arnovit v. 0A, 123 '0RA 3?=(. ,t is to vindicate or recogni6e a right violated in order to preclude further contests and not for the purpose of vindication of a right. A ard of 0o$pensator! da$ages ,t is in itself a recognition of the plaintiff-s right, hence, no need to a ard no$inal da$ages. %&da. de 9edina v. 0resencia, 99 '0RA 80=(. Te$perate da$ages are a arded on top of actual or co$pensator! in instances here the injur! is chro$ic and continuing. There is no inco$patibilit! bet een co$pensator! and te$perate because of its uni)ue nature. Though to a certain e#tent speculative, it should ta;e into account the cost of proper case. %Ra$os v. 0A, Aece$ber 29, 1999(. 'uspension of credit card

15

")uitable /and v. 0alderon, Aece$ber 13, 2000 The plaintiff e#ceeded his credit li$it. The ban; has the option to decide hether to reinstate or ter$inate a credit card previousl! suspended on considerations hich the ban; dee$s proper based on the cardholder-s record, capacit! to pa! and co$pliance ith an! re)uire$ent i$posed b! it. ,t is not liable for da$ages if it does not. Damnum absque injuria. iii. &ictor! :iner, ,nc. v. 4a$$ad, et al., 4.R. <o. 189=+=, <ove$ber 28, 2003 A ard of co$pensator! da$ages cannot be based on bare testi$on!. Aocu$entar! evidence should be presented to substantiate the clai$ for da$ages for the loss of earning capacit!. There are e#ception, li;e* a. b. hen the deceased as e$plo!ed as a dail! age or;er earning less than the $ini$u$ age under the current labor la s. hen the deceased is self e$plo!ed earning less than the $ini$u$ age under current labor la s.

,f the heirs cannot be a arded co$pensator! da$ages, the! $a! be entitled to te$perate or $oderate da$ages hich are $ore than no$inal but less than co$pensator! if the court finds that so$e pecuniar! loss has been suffered but its a$ount cannot be proved, especiall! so that the fact of loss of earnings have been established. Actual or co$pensator! da$ages are classified into t o* 1. Dano emergente or loss of hat a person alread! possessed. 2. ucro cesante or the failure to receive as a benefit that ould have pertained to hi$. %P<10 'hipping C Transport 0orp. v. 0A, 29? '0RA 302(. '$ith /ell Aod ell 'hipping Agenc! v. /orja 7anuar! 10, 2002
16

b. The a$ount of living e#penses is fi#ed at 80B of the inco$e. c. The for$ula cannot be attend other ise, the basis in co$putation of life e#pectanc! ould beco$e indefinite. ,t is not fair an!$ore. i. 9agbanua v. Tabusares, et al., 4.R. <o. 1821+3, 7une 3, 2003 Article 2208, <00 allo s the recover! of da$ages for loss or i$pair$ent of earning capacit! in cases of te$porar! or per$anent personal injur!. 'uch da$ages cover the loss sustained b! the dependents or heirs of the deceased, consisting of the support the! ould have received fro$ hi$ had he not die. The necessar! e#penses that he used for his o n needs have to be deducted for$ the gross inco$e. Hhat if the person ho died, died at the age of 100I The for$ula re$ains the sa$e. %'$ith /ell Aod ell 'hipping Agenc! 0orp. v. /orja, 7une 10, 2002(, other ise, the for$ula or basis in co$puting the earning capacit! ill never beco$e final, being al a!s subject to the eventualit! of death. The co$putation should not change. 5air is 5airM ii. People v. Herba, 7une 9, 2003 /urial e#penses $a! be recoveredKa arded in the a$ount of P28, 000.00 even ithout proof b! a! of docu$entar! evidence. 9ore than that a$ount, there $ust be docu$entar! evidence. ,n a arding the said a$ount, the court nor$all! ta;es into account the custo$ of the 5ilipinos during a;e. %People v. /aNo, 7anuar! 18, 2003> People v. /ajar, 1ctober 22, 200+(. iii. 'olidban; 0orp. v. 'ps. Arrieta, 4.R. <o. 182?20, 5ebruar! 1?, 2008

17

A ban;-s gross negligence in not honoring a ell founded chec;, aggravated b! its unreasonable dela! in repairing the error, calls for an a ard of $oral and e#e$plar! da$ages. The resulting injur! to the chec; riter-s reputation and peace of $ind needs to be recogni6ed and co$pensated. iv. Pre$ier Aevelop$ent /an; v. 0A, 4.R. <o. 189+82, April 13, 2003 The not so forthright conduct of a part! to a contract $a! render it liable for da$ages. v. 9artine6 v. 0o;eing, et al., 4.R. <o. 180192, 5ebruar! 1?, 2008 The $ere act of sub$itting a case to the authorities for prosecution does not $a;e one liable for $alicious prosecution for the la could not have $eant to i$pose a penalt! on the right to litigate. %:ao v. 0A, 2?1 '0RA 3??(. 10. Articles 2232 2233

Atlantic "rectors, ,nc. v. .erbal 0are Realt! 0orp., 9arch 10, 200+ a. 0ontractor-s lienKpreference i$prove$ent constructed A/P v. 0A, August =, 2001 b. "#trajudicial foreclosure is not e)uivalent to insolvenc! proceedings c. <o prorating of credits in foreclosure d. Prorating applies onl! if there is insolvenc!. %P' /an; v. :antin, 209 '0RA +2+> A/P v. <:R0, 12= '0RA 231(. A!A"ES ith respect to specific building or

18

11.

9anila Aoctors .ospital v. 'ollen 0hua, 7ul! +1, 200= - re$oval of so$e facilities b! hospital non essential for the care of patient $a! be lessened - patient can leave the hospital despite nonEpa!$ent of bills - rules are onl! de$onstrative of the precondition that a patient cannot step out of hospital - but hospital can sue> other re$edies

12.

Article 2198 Actual Aa$ages prove a. 4elu6 v. 0A %200+ /ar( b. 5uentes v. 0A E prove actual da$ages c. PT C T v. 0A, 'epte$ber +, 2002 E co$pensator! da$ages <o> no proof of pecuniar! loss E $oral da$ages <o> $ere dela! in deliver! of $one! E no proof of bad faith or gross of negligence a$ounting to bad faith E e#e$plar! da$ages <o> failed to sho entitle$ent to $oral, te$perate and co$pensator! da$ages E no sho ing of anton, fraudulent, rec;less, oppressive, $alevolent act E no$inal Les> to co$pensate for violation of right to receive ti$el! deliver! of $one! E Al$eda v. 0ariNo, 7anuar! 1+, 200+ E no$inal da$ages for violation of right E no te$perate da$ages E no proof of pecuniar! loss d. &ictor! :ines ,nc. v. 4a$$ad, <ove$ber 28, 2003

19

E te$perate da$ages, $ore than no$inal but less than co$pensator! a arded if there is proof of pecuniar! loss but can-t be proved. E there is proof of earning capacit! e. People v. /ajar, 1ctober 2?, 200+ E burial e#penses> E P28, 000.00 even if not proven E too; cogni6ance of custo$ of the 5ilipino during a;e. %People v. /aNo, 7anuar! 18, 2003> People v. Herba, 7une 9, 2003(. E te$perate Articles 2208> 220= a. Rosales v. 0A> 0arriaga v. /:T/ co$pensator! da$ages a arded to one not !et earning> hat as co$pensated as the loss of capacit! to earn> not actual loss of inco$e b. People v. 0uenco, 7anuar! 10, 2002 E earning capacit!> prove> based on testi$on! of brother. ,s not sufficient c. '$ith Aod ell 'hipping Agenc! 0orp. v. /orja, 7une 10, 2002 E da$ages in death E for$ula E onl! net earnings basis E 80B E %People v. 0uenco, 7anuar! 19, 2002( E basis of life e#pectanc! 20 E other ise, the basis of co$puting earning capacit! ill never beco$e final, being al a!s subject eventualit! of death. E co$putation should not change even if deceased died be!ond 20. 5air is fair. d. inde$nit! for loss of earning capacit! $ust be dul! proven e. testi$on! of brother not sufficient f. People v. Auetes, 5ebruar! =, 2003 docu$entar! evidence is necessar! for recover! of earnings> e#ceptions %1( selfE e$plo!ed earning less than the $ini$u$ age> %2( e$plo!ed as a dail! or;er earning less than $ini$u$ age. %&ictor! :iner, ,nc. v. 4a$$ad, <ove$ber 28, 2003(. 13. Article 221?> 2219 $oral da$ages
20

1+.

18.

"#e$plar! Aa$ages a. Articles 2229> 22+0> 22+1

1=.

'pecial :a s PA 98? RA 3?28 0oncurrence, Preference of 0redits #ote$ 9ercur! Arug 0orp. v. .uang $ore than P 309 b! a! of da$ages. From issues and questions.oblicon:

Robbe%y per se is not a fo%tuitous event. ,n !icam, et al. v. Jorge, et al. , 4.R. <o. 189=1?, August 2, 200?, :ulu 7orge pa ned several pieces of je elr! ith Agencia de R.0. 'ica$ to secure a loan in the a$ount of P89,800.00. ,t as alleged that t o ar$ed $en entered the pa nshop and too; a a! hatever cash and je elr! found inside the pa nshop vault. ,t as reported to the police. 'he sued for da$ages but 'ica$ interposed the defense of fortuitous event, alleging that there as robber!. The '0 brushed aside the contention and said* Robber! per se, just li;e carnapping, is not a fortuitous event. ,t does not foreclose the possibilit! of negligence on his part. ,n a case si$ilarl! situated, it as ruled that* F,t is not a defense for a repair shop of $otor vehicles to escape liabilit! si$pl! because the da$age or loss of a thing la full! placed in its possession as due to carnapping. 0arnapping per se cannot be considered as a fortuitous event. The fact that a thing as unla full! and forcefull! ta;en fro$ another-s rightful possession, as in cases of carnapping, does not auto$aticall! give rise to a fortuitous event. To be considered as such, carnapping entails $ore than the $ere forceful ta;ing of another-s propert!. ,t $ust be proved and established that the event as an act of 4od or as done solel! b! third parties and that neither the clai$ant nor the person alleged to be negligent has an! participation. ,n accordance ith the Rules of "vidence, the burden of proving that the loss as due to a fortuitous event rests on hi$ ho invo;es it hich in this case is the private respondent. .o ever, other than the police report of the alleged carnapping

21

incident, no other evidence as presented b! private respondent to the effect that the incident as not due to its fault. A police report of an alleged cri$e, to hich onl! private respondent is priv!, does not suffice to establish the carnapping. <either does it prove that there as no fault on the part! of private respondent not ithstanding the parties- agree$ent at the preEtrial that the car as carnapped. 0arnapping does not foreclose the possibilit! of fault or negligence on the part of private respondent. %0o. v. 0A, +8+ Phil. +08 %1992(> 'ica$, et al. v. 7orge, et al., 4.R. <o. 189=1?, August 2, 200?(. ,n another case, it as held that to be relieved fro$ civil liabilit! of returning the pendant under Article 11?3 of the 0ivil 0ode, it ould onl! be sufficient that the unforeseen event, the robber!, too; place ithout an! concurrent fault on the debtor-s part, and this can be done b! preponderance of evidence> that o be free fro$ liabilit! for reason of fortuitous event, the debtor $ust, in addition to the case itself, be free fro$ an! concurrent or contributor! fault or negligence. %'ica$, et al. v. 7orge, et al., supra.(. #on&involve'ent clause in a cont%act( valid) p%ovided the%e is li'itation as to ti'e) place and t%ade. ,n Dais" #iu v. $latinum $lans, %nc., 4.R. <o. 1=+812, 5ebruar! 22, 200?, the petitioner as e$plo!ed as Aivision 9ar;eting Airector of the respondent, a preEneed co$pan!. ,n 1998, she stopped or;ing and beca$e the &ice President for 'ales of Professional Pension Plans, ,nc., another preEneed co$pan!. 'he as sued for da$ages for violating her contract ith respondent hich prohibited her in a business of the sa$e nature ithin t o %2( !ears fro$ separation, hether voluntar! or involuntar!. The RT0 and the 0A held her liable. /efore the '0, the petitioner contended that the nonEinvolve$ent clause is offensive to public polic! since the restraint i$posed is $uch greater than hat is necessar! to afford respondent a fair and reasonable protection. 'he added that since the products sold in the preEneed industr! are $ore or less the sa$e, the transfer to a rival co$pan! is acceptable. 'he li;e ise argued that a strict application of the nonEinvolve$ent clause ould deprive her of the right to engage in the onl! or; she ;no s. Respondent countered that the validit! of a nonEinvolve$ent clause has been sustained b! the 'upre$e 0ourt in a long line of cases. ,t contended that the inclusion of the t oE!ear nonEinvolve$ent clause in the contract of e$plo!$ent as reasonable and needed since her job gave her access to the co$pan!-s confidential $ar;eting strategies. ,t added that the nonEinvolve$ent clause $erel! enjoined her fro$ engaging in preEneed business a;in to respondent-s ithin t o !ears fro$ her separation fro$ respondent. 'he had not

22

been prohibited fro$ $ar;eting other service plans. ,n brushing aside respondent-s contention, the '0 *eld$ As earl! as 191=, the validit! of a nonEinvolve$ent clause has alread! been discussed. ,n &erazzini v. 'sell, +3 Phil. =9? %191=(, it as held that such clause as unreasonable restraint of trade and therefore against public polic!. ,n 5erra66ini, the e$plo!ee as prohibited fro$ engaging in an! business or occupation in the Philippines for a period of five !ears after the ter$ination of his e$plo!$ent contract and $ust first get the ritten per$ission of his e$plo!er if he ere to do so. The 0ourt ruled that hile the stipulation as indeed li$ited as to ti$e and space, it as not li$ited as to trade. 'uch prohibition, in effect, forced an e$plo!ee to leave the Philippines to or; should his e$plo!er refuse to give a ritten per$ission. ,n '. (artini, td. v. 'laiserman, +9 Phil. 120 %1912(, a si$ilar stipulation as declared as void for being unreasonable restraint of trade. There, the e$plo!ee as prohibited fro$ engaging in an! business si$ilar to that of his e$plo!er for a period of one !ear. 'ince the e$plo!ee as e$plo!ed onl! in connection ith the purchase and e#port of abaca, a$ong the $an! business of the e$plo!er, the restraint as considered too broad since it effectivel! prevented the e$plo!ee fro$ or;ing in an! other business si$ilar to his e$plo!er even if his e$plo!$ent as li$ited onl! to one of its $ultifarious business activities. .o ever, in Del Castillo v. Ric)mond, 38 Phil. =?9 %19?3(, a si$ilar stipulation as upheld as legal, reasonable, and not contrar! to public polic!. ,n the said case, the e$plo!ee as restricted fro$ opening, o ning or having an! connection ith an! other drugstore ithin a radius of four $iles fro$ the e$plo!er-s place of business during the ti$e the e$plo!er as operating his drugstore. A contract in restraint of trade is valid provided there is a li$itation upon either ti$e or place and the restraint upon one part! is not greater than the protection the other part! re)uires. 5inall!, in Consulta v. Court of Appeals, 4.R. <o. 13833+, 9arch 12, 2008, 38+ '0RA ?+2, a nonEinvolve$ent clause as held in accordance ith Article 1+0= of the 0ivil 0ode. Hhile the co$plainant in that case as an independent agent and not an e$plo!ee, she as prohibited for one !ear fro$ engaging directl! or indirectl! in activities of other co$panies that co$pete ith the business of her principal. The restriction did not prohibit the agent fro$ engaging in an! other business, or fro$ being connected ith an! other co$pan!, for as long as the business or co$pan! did not co$pete ith the principal-s business. 5urther, the prohibition applied onl! for one !ear after the ter$ination of the agent-s contract and as therefore a reasonable restriction designed to prevent acts prejudicial to the e$plo!er.

23

0onfor$abl! ith the afore$entioned pronounce$ents, a nonE involve$ent clause is not necessaril! void for being in restraint of trade as long as there are reasonable li$itations as to ti$e, trade, and place. ,n this case, the nonEinvolve$ent clause has a ti$e li$it* t o !ears fro$ the ti$e petitioner-s e$plo!$ent ith respondent ends. ,t is also li$ited as to trade, since it onl! prohibits petitioner fro$ engaging in an! preEneed business a;in to respondent-s. ,n this case hat $a;es the nonEinvolve$ent clause valid is that, she had been priv! to confidential and highl! sensitive $ar;eting strategies of respondent-s business. To allo her to engage in a rival business soon after she leaves ould $a;e respondent-s trade secrets vulnerable especiall! in a highl! co$petitive $ar;eting environ$ent. ,n su$, the nonEinvolve$ent clause is not contrar! to public elfare and not greater than is necessar! to afford a fair and reasonable protection to respondent. %1llendorff v. Abraha$so$, +2 Phil. 828 %1912((. ,n an! event, Article 1+0= of the 0ivil 0ode provides that parties to a contract $a! establish such stipulations, clauses, ter$s and conditions as the! $a! dee$ convenient, provided the! are not contrar! to la , $orals, good custo$s, public order, or public polic!. Article 1189 of the sa$e 0ode also provides that obligations arising fro$ contracts have the force of la bet een the contracting parties and should be co$plied ith in good faith. 0ourts cannot stipulate for the parties nor a$end their agree$ent here the sa$e does not contravene la , $orals, good custo$s, public order or public polic!, for to do so ould be to alter the real intent of the parties, and ould run contrar! to the function of the courts to give force and effect thereto. %Phil. 0o$$unications 'atellite 0orp. v. Teleco$, ,nc., 4.R. <os. 13?+23 and 13?++3, 9a! 28, 2003, 329 '0RA 18+(.

I#TEREST + L,A# Eastern !)ipping teaches that, ith respect to an a ard of interest in the concept of actual and co$pensator! da$ages, interest on the a$ount of da$ages a arded $a! be i$posed at the discretion of the 0ourt at the rate of =B per annu$ for a breach of an obligation not constituting a loan or forbearance of $one!. <o interest, ho ever, shall be adjudged on unli)uidated clai$s or da$ages e#cept hen or until the de$and can be established ith reasonable certaint!. Hhere the de$and is established ith reasonable certaint!, the interest shall begin to run fro$ the ti$e the clai$ is $ade judiciall! or e#trajudiciall!. /ut hen such certaint! cannot be reasonabl! established at the ti$e the de$and is $ade, the interest shall begin to run onl! fro$ the date the

24

judg$ent of the court is $ade. %"astern 'hipping :ines, ,nc. v. 0ourt of Appeals, supra note 22 at 9=, see also /iesterbos v. 0ourt of Appeals, 4.R. no. 182829, 22 'epte$ber 200+, 311 '0RA +9=, 30=E30?> .eirs of ,gnacia AguilarERe!es v. 'pouses 9ijares, 38? Phil. 120, 130 %200+((. ,n Eastern !)ipping, the 0ourt ent on to state that hen the judg$ent of the court a arding a su$ of $one! beco$es final and e#ecutor!, the rate of legal interest, hether the obligation as in the for$ of a loan or forbearance of $one! or other ise, shall be 12B per annu$ fro$ such finalit! until its satisfaction, this interi$ period being dee$ed to be b! then an e)uivalent to a forbearance of credit. %"astern 'hipping :ines, ,nc. v. 0ourt of Appeals, supra note 22. Reiterated in Almeda v. Cari*o, 33+ Phil. 122, 192 %200+(> /iesterbos v. 0ourt of Appeals, supra.> &icente v. Planters Aevelop$ent /an;, 333 Phil. +09, +2+E+23 %200+(> 'olid .o$es, ,nc. v. ,A0, et al., 4.R. <o. ?32=9> <ove$ber 2?, 200=(. A"E#Coct%ine of p%ocu%ing entitle'ent to co''ission. .acts$ !edica%d and /nited Labo%ato%ies "%oup of Co'panies 0/nilab1 e2ecuted a *ealth Ca%e 3%og%a' Cont%act. /nde% this cont%act) /nilab shall pay !edica%d a fi2ed 'onthly p%e'iu' fo% the health insu%ance of its pe%sonnel. /nilab paid !edica%d 34)145)665.66 %ep%esenting the p%e'iu' fo% one 011 yea%. !edica%d then handed petitione% 157 of said a'ount o% 3846) 646.96 %ep%esenting his co''ission. Again) th%ough petitione%:s initiative) the agency cont%act bet;een !edica%d and /nilab ;as %ene;ed fo% anothe% yea%. 3%io% to the e2pi%ation of the %ene;ed cont%act) !edica%d p%oposed to /nilab) th%ough petitione%) an inc%ease of the p%e'iu' fo% the ne2t yea%. /nilab %e<ected the p%oposal =fo% the %eason that it ;as too high>) p%o'pting %. #icano% !ontoya 0!edica%d:s p%esident and gene%al 'anage%1) to %e?uest petitione% to %educe his co''ission) but the latte% %efused. /nilab) th%ough Ca%los E<e%cito) confi%'ed its decision not to %ene; the health p%og%a' cont%act ;ith !edica%d. !ean;hile) in o%de% not to p%e<udice its pe%sonnel by the te%'ination of thei% health insu%ance) /nilab) th%ough %espondent E<e%cito) negotiated ;ith %. !ontoya and othe% office%s of !edica%d) to discuss ;ays in o%de% to continue the insu%ance cove%age of those pe%sonnel. It ;as accepted. cause(

25

!edica%d did not give petitione% any co''ission unde% the ne; sche'e) hence) petitione% de'anded fo% his co''ission but /nilab %efused to pay) hence) he filed a co'plaint fo% su' of 'oney ;ith da'ages to %ecove% his co''ission. The RTC dis'issed the co'plaint ;hich the CA affi%'ed) holding that the%e ;as no p%oof that the cont%act ;as e2ecuted th%u his effo%ts. The Sup%e'e Cou%t affi%'ed the decision and .eld* ,t is dictu$ that in order for an agent to be entitled to a co$$ission, he $ust be the procuring cause of the sale, hich si$pl! $eans that the $easures e$plo!ed b! hi$ and the efforts he e#erted $ust result in a sale. %Aa$on vs. Antonio /ri$o C 0o., 32 Phil. 1+3> Ra$os vs. 0A, =+ '0RA ++1(. ,n other ords, an agent receives his co$$ission onl! upon the successful conclusion of a sale. %.ahn vs. 0A, 4.R. <o. 11+0?3, 7anuar! 22, 199?, 2== '0RA 8+?(. 0onversel!, it follo s that here his efforts are unsuccessful, or there as no effort on his part, he is not entitled to a co$$ission. ,n this case, the contract as negotiated directl! b! the parties after the agenc! as revo;ed due to his refusal to reduce his co$$ission. Revocation is allo ed b! la hich states that the agenc! is revo;ed if the principal directl! $anages the business entrusted to the agent, dealing directl! ith third persons. %Art. 1923, <00(. The agent as not the procuring cause of the contract bet een the parties, hence, he is not entitled to co$$ission. %'anche6 vs. 9edicard Phils. ,nc., et al., 4.R. <o. 131828, 'epte$ber 2, 2008(. ,n $rats vs. CA, 4.R. <o. +9222, 7anuar! +1, 19?2, 21 '0RA +=0, it has been held that for the purpose of e)uit!, an agent ho is not the efficient procuring cause is nonetheless entitled to his co$$ission, here said agent, not ithstanding the e#piration of his authorit!, nonetheless, too; diligent steps to bring bac; together the parties, such that a sale as finali6ed and consu$$ated bet een the$. ,n (anoto+ ,ort)ers vs. CA, 4.R. <o. 93?8+, April ?, 199+, 2?1 '0RA 223, here the Aeed of 'ale as onl! e#ecuted after the agent-s e#tended authorit! had e#pired, the 0ourt, appl!ing its ruling in Prats, held that the agent is entitled to a co$$ission since he as the efficient procuring cause of the sale, not ithstanding that the sale too; place after his authorit! had lapsed. The pro#i$ate, close, and causal connection bet een the agent-s efforts and the principal-s sale of his propert! cannot be ignored. Note: This is based on Article 19, NCC.

Liability of the e'ploye% fo% the acts o% o'issions of the e'ployee.

26

1nce again, the '0 in (ercur" Drug, et al. v. !ps. -uang, et al., 4.R. <o. 1?2122, 7une 22, 200?, %Puno, 7( had the occasion to rule on the liabilit! of the e$plo!er for the negligent act of the e$plo!ee hile in the perfor$ance of his duties and functions. The liabilit! of the e$plo!er under Art. 2120 of the 0ivil 0ode is direct or i$$ediate. ,t is not conditioned on a prior recourse against the negligent e$plo!ee, or a prior sho ing of insolvenc! of such e$plo!ee. ,t is also joint and solidar! ith the e$plo!ee. %Art. 2193, <00(. To be relieved of liabilit!, the e$plo!er should sho that it e#ercised the diligence of a good father of a fa$il!, both in the selection of the e$plo!ee and in the supervision of the perfor$ance of his duties. Thus, in the selection of its prospective e$plo!ees, the e$plo!er is re)uired to e#a$ine the$ as to their )ualifications, e#perience, and service records. %"stacion v. /ernardo, 4.R. <o. 133?2+, 5ebruar! 2?, 200=, 32+ '0RA 222> 0a$po v. 0a$arote, 100 Phil. 389 %108=((. Hith respect to the supervision of its e$plo!ees, the e$plo!er should for$ulate standard operating procedures, $onitor their i$ple$entation, and i$pose disciplinar! $easures for their breach. To establish co$pliance ith these re)uire$ents, e$plo!ers $ust sub$it concrete proof, including docu$entar! evidence. %&ictor! :iner, ,nc. v. .eirs of Andres 9alecdan, 4.R. <o. 1832?2, Aece$ber 2?, 2002, +93 '0RA 820(. ,n this case, the e$plo!er, 9ercur! Arug presented testi$onial evidence on its hiring procedure. According to 9rs. 9erlie 0aa$ic, the Recruit$ent and Training 9anager of petitioner 9ercur! Arug, applicants are re)uired to ta;e theoretical and actual driving tests, and ps!chological e#a$ination. ,n the case of e$plo!ee, ho ever, 9rs. 0aa$ic ad$itted that he too; the driving tests and ps!chological e#a$ination hen he applied for the position of Aeliver! 9an, but not hen he applied for the position of Truc; 9an. 9rs. 0aa$ic also ad$itted that e$plo!ee used a 4alant hich is a light vehicle, instead of a truc; during the driving tests. 5urther, no tests ere conducted on the $otor s;ills develop$ent, perceptual speed, visual attention, depth visuali6ation, e!e and hand coordination and steadiness of the e$plo!ee. <o </, and police clearances ere also presented. :astl!, he attended onl! three driving se$inars. ,n effect, the onl! se$inar he attended before the accident hich occurred in 199= as held t elve !ears ago in 1923. 5urther$ore, in this case, the e$plo!er did not have bac;Eup driver for long trips. At the ti$e of the accident, the e$plo!ee has been out on the road for $ore than thirteen hours, ithout an! alternate. The itness ad$itted that she did not ;no of an! co$pan! polic! re)uiring bac;Eup drivers for long trips. The e$plo!er li;e ise failed to sho that it e#ercised due diligence on the supervision and discipline over its e$plo!ees. ,n fact, on the da! of the accident,

27

the e$plo!ee as driving ithout a license. .e as holding a T&R for rec;less driving. .e testified that he reported the incident to his superior, but nothing as done about it. .e as not suspended or repri$anded. <o disciplinar! action hatsoever as ta;en against hi$. Thus, the e$plo!er failed to discharge its burden of proving that it e#ercised due diligence in the selection and supervision of its e$plo!ee. a'age %ecove%able. The trial court a arded the follo ing a$ounts* 1. T o 9illion <ine .undred %P2,9?+,000.00( actual da$ages> 2. As co$pensator! da$ages* a. T ent!EThree 9illion 5our .undred 'i#t! 1ne Thousand, and 'i#t!ET o Pesos %P2+,3=1,0=2.00( for life care cost of 'tephen> b. Ten 9illion Pesos %P10,000,000.00( as and for lost or i$paired earning capacit! of 'tephen> +. 5our 9illion Pesos %P3,000,000.00( as $oral da$ages> 3. T o 9illion Pesos %P2,000,000.00( as e#e$plar! da$ages> and 8. 1ne 9illion Pesos %P1,000,000.00( as attorne!-s fees and litigation e#pense. The 0ourt of Appeals affir$ed the decision of the trial court but reduced the a ard of $oral da$ages to P1,000,000.00. Hith regard to actual da$ages, Art. 2199 of the 0ivil 0ode provides that F"#cept as provided b! la or b! stipulation one is entitled to an ade)uate co$pensation onl! for such pecuniar! loss suffered b! hi$ as he has dul! proved # # #.G ,n this case, the actual da$ages clai$ed ere supported b! receipts. The a$ount of P2,9?+,000.00 represented cost of hospital e#penses, $edicines, $edical services and supplies, and nursing care services provided on the victi$ of the vehicular accident. Petitioners are also liable for all da$ages hich are the natural and probable conse)uences of the act or o$ission co$plained of. %Art. 2202, <00(. The doctors ho attended to the victi$ are one in their prognosis that his chances of al;ing again and perfor$ing basic bod! functions are nil. 5or the rest of his life, he ill need continuous rehabilitation and therap! to prevent further co$plications such as pneu$onia, bladder and rectu$ infection, renal 'event!EThree Thousand Pesos

28

failure, sepsis and severe bed sores, osteoporosis and fractures, and other spinal cord injur!Erelated conditions. .e ill be co$pletel! dependent on the care and support of his fa$il!, hence, the a ard of P2+,3=1,0=2.00 for the life care cost of the victi$ as upheld based on his average $onthl! e#pense and the actuarial co$putation of the re$aining !ears that he is e#pected to live> and the conservative a$ount of P10,000,000.00, for the loss or i$pair$ent of his earning capacit!, %Art. 2208, <00(, considering his age, probable life e#pectanc!, the state of his health, and his $ental and ph!sical condition before the accident. .e as onl! seventeen !ears old, nearl! si# feet tall and eighed 1?8 pounds. .e as in fourth !ear high school, and a $e$ber of the school varsit! bas;etball tea$. .e as also class president and editorEinEchief of the school annual. .e had sho n ver! good leadership )ualities. .e as loo;ing for ard to his college life, having just passed the entrance e#a$inations of the Dniversit! of the Philippines, Ae :a 'alle Dniversit!, and the Dniversit! of Asia and the Pacific. The Dniversit! of 'to. To$as even offered hi$ a chance to obtain an athletic scholarship, but the accident prevented hi$ fro$ attending the bas;etball tr!E outs. Hithout doubt, he as an e#ceptional student. .e e#celled both in his acade$ics and e#tracurricular underta;ings. .e is intelligent and $otivated, a goEgetter. .ad the accident not happened, he had a ros! future ahead of hi$. .e anted to e$bar; on a ban;ing career, get $arried and raise children. Ta;ing into account his outstanding abilities, he ould have enjo!ed a successful professional career in ban;ing. /ut, no , it is highl! unli;el! for so$eone li;e respondent to ever secure a job in a ban;. !o%al da'ages. The a ard of $oral and e#e$plar! da$ages and attorne!-s fees li;e ise upheld* FThe a ard of $oral da$ages is ai$ed at a restoration, ithin the li$its of the possible, of the spiritual status quo ante. %Ro)ue v. To$as, 4.R. <o. 18?=+2, Aece$ber =, 200=(. 9oral da$ages are designed to co$pensate and alleviate in so$e a! the ph!sical suffering, $ental anguish, fright, serious an#iet!, bes$irched reputation, ounded feelings, $oral shoc;, social hu$iliation, and si$ilar injur! unjustl! caused a person. Although incapable of pecuniar! co$putation, the! $ust be proportionate to the suffering inflicted. %P<R v. /runt!, 4.R. <o. 1=9291, <ove$ber 2, 200=(. The a$ount of the a ard bears no relation hatsoever ith the ealth or $eans of the offender. Evidence of 'o%al da'ages. 'tephen .uang the victi$ and his parents Richard and 0ar$en .uang testified to the intense suffering the! continue to e#perience as a result of the accident. 'tephen recounted the night$ares and trau$as he suffers al$ost as

29

ever! night hen he relives the accident. .e also gets depression hen he thin;s of his blea; future. .e feels frustration and e$barrass$ent in needing to be helped ith al$ost ever!thing and in his inabilit! to do si$ple things he used to do. 'i$ilarl!, respondent spouses and the rest of the fa$il! undergo their o n private suffering. The! live ith the da!EtoEda! uncertaint! of respondent 'tephen .uang-s condition. The! ;no that the chance of full recover! is nil. 9oreover, respondent 'tephen .uang-s paral!sis has $ade hi$ prone to $an! other illnesses. .is fa$il!, especiall! respondent spouses, have to $a;e the$selves available for 'tephen t ent!Efour hours a da!. The! have patterned their dail! life around ta;ing care of hi$, $inistering to his dail! needs, altering the lifest!le to hich the! had been accusto$ed. E2e'pla%y da'ages. 1n the $atter of e#e$plar! da$ages, Art. 22+1 of the 0ivil 0ode provides that in cases of )uasiEdelicts, e#e$plar! da$ages $a! be granted if the defendant acted ith gross negligence. At the ti$e of the accident, the e$plo!ee as driving ithout a license because he as previousl! tic;eted for rec;less driving. The evidence also sho ed that he failed to step on his bra;es i$$ediatel! after the i$pact. .ad he done so, the injuries hich the victi$ sustained could have been greatl! reduced. Hanton acts such as that co$$itted b! the e$plo!er need be suppressed> and e$plo!ers li;e 9ercur! Arug should be $ore circu$spect in the observance of due diligence in the selection and supervision of their e$plo!ees. The a ard of e#e$plar! da$ages is therefore justified. Atto%ney:s fees. Hith the a ard of e#e$plar! da$ages, the a ard of attorne!-s fees as upheld. %Art. 2202%1(, <00(. ,n addition, attorne!-s fees $a! be granted hen a part! is co$pelled to litigate or incur e#penses to protect his interest b! reason of an unjustified act of the other part!. %Art. 2202%3(, <00(. Liability of hospitals unde% the doct%ine of appa%ent autho%ity and doct%ine of co%po%ate negligence. The case of $rofessional !ervices, %nc. v. Agana, 4.R. <o. 12=29?> Agana, et al. v. &uentes, 4.R. <o. 12=3=?> Ampil v. Agana, et al., 4.R. <o. 12?890, 7anuar! +1, 200? set the precedent for the liabilit! of hospitals for the negligence of doctors e$plo!ed b! it, or even consultants. The '0 said that courts in holding a hospital liable for da$ages, having underta;en one of $an;ind-s $ost i$portant and delicate endeavors, $ust assu$e the grave responsibilit! of pursuing it ith appropriate care. The care and service dispensed through this high trust, ho ever technical, co$ple# and esoteric its character $a! be, $ust $eet standards of responsibilit! co$$ensurate ith the

30

underta;ing to preserve and protect the health, and indeed, the ver! lives of those placed in the hospital-s ;eeping. %/eec; v. Tu6on 4eneral .ospital, 800 P. 2d 118+ %19?2(, citing Aarling v. 0harleston 0o$$unit! 9e$orial .ospital, ++ ,ll. 2d +2=, 211 <.". 2d 28+(. Ar. A$pil, assisted b! the $edical staff of the 9edical 0it! .ospital, perfor$ed an anterior resection surger! on <atividad. .e found that the $alignanc! in her sig$oid area had spread on her left ovar!, necessitating the re$oval of certain portions of it. Thus, Ar. A$pil obtained the consent of <atividad-s husband, "nri)ue Agana, to per$it Ar. 7uan 5uentes, to perfor$ h!sterecto$! on her. After Ar. 5uentes had co$pleted the h!sterecto$!, Ar. A$pil too; over, co$pleted the operation and closed the incision. The operation appeared to be fla ed, because the attending nurse entered these re$ar;s* =sponge count lac@ing A =announced to su%geon sea%ched 0sic1 done but to no avail continue fo% closu%e.> <atividad as released fro$ the hospital, but later on co$plained of e#cruciating pain in her anal region. 'he consulted both doctors about it. The! told her that the pain is the natural conse)uence of the surger!. Ar. A$pil then reco$$ended that she consult an oncologist to e#a$ine the cancerous nodes hich ere not re$oved during the operation. Acco$panied b! her husband she ent to the Dnited 'tates to see; further treat$ent. After four $onths of consultations and laborator! e#a$inations, she as told she as free of cancer. .ence, she as advised to return to the Philippines. After her return to the Philippines, her daughter found a piece of gau6e protruding fro$ her vagina. Dpon being infor$ed about it, Ar. A$pil proceeded to her house here he $anaged to e#tract b! hand a piece of gau6e $easuring 1.8 inches in idth. .e then assured her that the pains ould soon vanish. Ar. A$pil-s assurance did not co$e true. ,nstead, the pains intensified, pro$pting <atividad to see; treat$ent at the Pol!$edic 4eneral .ospital. Hhile confined there, Ar. Ra$on 4utierre6 detected the presence of another foreign object in her vagina a foulEs$elling gau6e $easuring 1.8 inches in idth badl! infected her vaginal vault. A rectoEvaginal fistula had for$ed in her reproductive organs hich forced stool to e#crete through the vagina. Another surgical operation as needed to re$ed! the da$age. Thus, in 1ctober 1923, she under ent another surger!.

31

The spouses filed a co$plaint for da$ages alleging that the doctors are liable for negligence for leaving t o pieces of gau6e inside <atividad-s bod! and $alpractice for concealing their acts of negligence. 1n 5ebruar! 1=, 192=, pending the outco$e of the above case, she died and as dul! substituted b! her children. The trial court rendered a judg$ent holding the doctors liable for negligence and $alpractice. 1n appeal, the 0A dis$issed the case against Ar. 5uentes but affir$ed the judg$ent against Ar. A$pil and the hospital. 1n 'epte$ber =, 199=, the 0ourt of Appeals rendered its Aecision jointl! disposing of 0AE4R 0& <o. 320=2 and 0AE4R 'P <o. +2192, dis$issing the case against Ar. 5uentes and holding P', and Ar. A$pil solidaril! liable. 1nl! Ar. A$pil filed a $otion for reconsideration, but as denied. P', alleged in its petition that the 0ourt of Appeals erred in holding that* %1( it is estopped fro$ raising the defense that Ar. A$pil is not its e$plo!ee> %2( it is solidaril! liable ith Ar. A$pil> and %+( it is not entitled to its counterclai$ against the Aganas. P', contended that Ar. A$pil is not its e$plo!ee, but a $ere consultant or independent contractor. As such, he alone should ans er for his negligence. The Aganas $aintained that the 0ourt of Appeals erred in finding that Ar. 5uentes is not guilt! of negligence or $edical $alpractice, invo;ing the doctrine of res ipsa loquitur. The! contended that the pieces of gau6e are prima facie proofs that the operating surgeons have been negligent. Ar. A$pil asserted that the 0ourt of Appeals erred in finding hi$ liable for negligence and $alpractice sans evidence that he left the t o pieces of gau6e in <atividad-s vagina. .e pointed to other probable cause, such as* %1( it as Ar. 5uentes ho used gau6es in perfor$ing the h!sterecto$!> %2( the attending nurses- failure to properl! count the gau6es used during surger!> and %+( the $edical intervention of the A$erican doctors ho e#a$ined <atividad in the Dnited 'tates of A$erica. The issues sub$itted to the court ere* first, hether the 0ourt of Appeals erred in holding Ar. A$pil liable for negligence and $alpractice> second, hether the 0ourt of Appeals erred in absolving Ar. 5uentes of an! liabilit!> and t)ird, hether P', $a! be held solidaril! liable for the negligence of Ar. A$pil.

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*eld$ %1( Hhether the 0ourt of Appeals erred in holding Ar. A$pil liable for negligence and $alpractice. Ar. A$pil argued that the 0ourt should not discount either of the follo ing possibilities* first, Ar. 5uentes left the gau6es in <atividad-s bod! after perfor$ing h!sterecto$!> second, the attending nurses erred in counting the gau6es> and t)ird, the A$erican doctors ere the ones ho placed the gau6es in <atividad-s bod!. The argu$ents are purel! conjectural and ithout basis. Records sho that he did not present an! evidence to prove that the A$erican doctors ere the ones ho put or left the gau6es in <atividad-s bod!. <either did he sub$it evidence to rebut the correctness of the record of operation, particularl! the nu$ber of gau6es used. As to the alleged negligence of Ar. 5uentes, Ar. A$pil e#a$ined his or; and found it in order. The glaring truth is that all the $ajor circu$stances, ta;en together, as specified b! the 0ourt of Appeals, directl! point to Ar. A$pil as the negligent part!, thus* &irst, it is not disputed that the surgeons used gau6es as sponges to control the bleeding of the patient during the surgical operation. !econd, i$$ediatel! after the operation, the nurses ho assisted in the surger! noted in their support that the Jsponge count % as( lac;ing 2-> that such ano'aly ;as Bannounced to su%geon: and that a Bsea%ch ;as done but to no avail: p%o'pting %. A'pil to Bcontinue fo% closu%e: # # #. #)ird, after the operation, t o %2( gau6es ere e#tracted fro$ the sa$e spot of the bod! of 9rs. Agana here the surger! as perfor$ed. An operation re)uiring the placing of sponges in the incision is not co$plete until the sponges are properl! re$oved, and it is settled that the leaving of sponges or other foreign substances in the ound after the incision has been closed is at least prima facie negligence b! the operating surgeon. %Rule v. 0heese$an, +1? P. 2d 3?2 %198?(, citing Russel v. <e $an, 11= @an. 2=2 P. ?82> /ernsden v. 7ohnson, 1?3 @an. 2+0, 288 P. 2d 10++(. To put si$pl!, such act is considered so inconsistent ith 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. The '0 further ruled that it is not blind to the realit! that there are ti$es hen danger to a patient-s life precludes a surgeon fro$ further searching $issing sponges or foreign objects left in the bod!. /ut this does not leave hi$

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free fro$ an! obligation. "ven if it has been sho n that a surgeon as re)uired b! the urgent necessities of the case to leave a sponge in his patient-s abdo$en, because of the dangers attendant upon dela!, still, it is his legal dut! to so infor$ his patient ithin a reasonable ti$e thereafter b! advising her of hat he had been co$pelled to do. This is in order that she $ight see; relief fro$ the effects of the foreign object left in her bod! as her condition $ight per$it. ,n !mit) v. .eagler, it as ruled, thus* FThe re$oval of all sponges used is part of a surgical operation, and hen a ph!sician or surgeon fails to re$ove a sponge he has placed in his patient-s bod! that should be re$oved as part of the operation, he thereb! leaves his operation unco$pleted and c%eates a ne; condition ;hich i'poses upon hi' the legal duty of calling the ne; condition to his patient:s attention) and endeavo%ing ;ith the 'eans he has at hand to 'ini'iCe and avoid unto;a%d %esults li@ely to ensue the%ef%o'. %18? 'o. +22 Pla. %19+3((. Ar. A$pil did not infor$ <atividad about the $issing t o pieces of gau6e. Horse, he even $isled her that the pain she as e#periencing as the ordinar! conse)uence of her operation. .ad he been $ore candid, <atividad could have ta;en the i$$ediate and appropriate $edical re$ed! to re$ove the gau6es fro$ her bod!. Hhat as initiall! an act of negligence b! Ar. A$pil has ripened into a deliberate rongful act of deceiving his patient. To successfull! pursue this ;ind of case, a patient $ust onl! prove that a health care provider either failed to do so$ething hich a reasonabl! prudent health care provider ould have done, or that he did so$ething that a reasonabl! prudent provider ould not have done> and that failure or action caused injur! to the patient. %4arciaERueda v. Pascasio, 4.R. <o. 112131, 'epte$ber 8, 199?, 2?2 '0RA ?=9(. 'i$pl! put, the ele$ents are dut!, breach, injur! and pro#i$ate causation. Ar. A$pil, as the lead surgeon, had the dut! to re$ove all foreign objects, such as gau6es, fro$ <atividad-s bod! before closure of the incision. Hhen he failed to do so, it as his dut! to infor$ <atividad about it. Ar. A$pil breached both duties. 'uch breach caused injur! to <atividad, necessitating her further e#a$ination b! A$erican doctors and another surger!. That Ar. A$pil-s negligence is the pro#i$ate cause of <atividad-s injur! could be traced fro$ his act of closing the incision despite the infor$ation given b! the attending nurses that t o pieces of gau6e ere still $issing. That the! ere later on e#tracted fro$ <atividad-s vagina established the causal lin; bet een Ar. A$pil-s negligence and the injur!. And hat further aggravated such injur! as his deliberate conceal$ent of the $issing gau6es fro$ the ;no ledge of <atividad and her fa$il!. %2( Hhether the 0ourt of Appeals erred in absolving Ar. 5uentes of an! liabilit!.

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The Aganas assailed the dis$issal b! the trial court of the case against Ar. 5uentes on the ground that it is contrar! to the doctrine of res ipsa loquitur. According to the$, the fact that the t o pieces of gau6e ere left inside <atividad-s bod! is a prima facie evidence of Ar. 5uentes- negligence. *eld$ The '0 ruled other ise. :iterall!, res ipsa loquitur $eans Fthe thing spea;s for itselfG. ,t is the rule that the fact of the occurrence of an injur!, ta;en ith the surrounding circu$stances, $a! per$it an inference or raise a presu$ption of negligence, or $a;e out a plaintiff-s prima facie case, and present a )uestion of fact for defendant to $eet ith an e#planation. %Ra$os v. 0A, 4.R. <o. 123+83, Aece$ber 29, 1999, +21 '0RA 823(. 'tated differentl!, here the thing hich caused the injur!, ithout the fault of the injured, is under the e#clusive control of the defendant and the injur! is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of e#planation that the injur! arose fro$ the defendant-s ant of care, and the burden of proof is shifted to hi$ to establish that he has observed due care and diligence. %Africa v. 0alte# %Phils.( ,nc., 12+ Phil. 220(. 5ro$ the foregoing state$ents of the rule, the re)uisites for the applicabilit! of the doctrine of res ipsa loquitur are* %1( the occurrence of an injur!> %2( the thing hich caused the injur! as under the control and $anage$ent of the defendant> %+( the occurrence as such that in the ordinar! course of things, ould not have happened if those ho had control or $anage$ent used proper care> and %3( the absence of e#planation b! the defendant. 1f the foregoing re)uisites, the $ost instru$ental is the Fcontrol and $anage$ent of the thing hich cause the injur!G. The ele$ent of Fcontrol and $anage$ent of the thing hich caused the injur!G are anting in the case. .ence, the doctrine of res ipsa loquitur ill not lie. Captain of the Ship Rule. Ar. A$pil as the lead surgeon during the operation of <atividad. .e re)uested the assistance of Ar. 5uentes onl! to perfor$ h!sterecto$! hen he found that the $alignanc! in her sig$oid area had spread to her left ovar!. Ar. 5uentes perfor$ed the surger! and thereafter reported and sho ed his or; to Ar. A$pil. The latter e#a$ined it and finding ever!thing to be in order, allo ed Ar. 5uentes to leave the operating roo$. Ar. A$pil then resu$ed operating on <atividad. .e as about to finish the procedure hen the attending nurses infor$ed hi$ that t o pieces of gau6e ere $issing. A Fdiligent searchG as conducted, but the $isplaced gau6es ere not found. Ar. A$pil then directed that the incision be closed. Auring this entire period, Ar. 5uentes as no longer in the operating roo$ and had, in fact, left the hospital.

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Dnder the F0aptain of the 'hipG rule, the operating surgeon is the person in co$plete charge of the surger! roo$ and all personnel connected ith the operation. Their dut! is to obe! his orders. %Rural "ducational Assn. v. /ush, 32 Tenn. App. +3, 292 '.H. 2d ?=1 %198=((. As stated before, Ar. A$pil as the lead surgeon. ,n other ords, he as the F0aptain of the 'hipG. That he discharged such role is evidenced fro$ his follo ing conduct* %1( calling Ar. 5uentes to perfor$ a h!sterecto$!> %2( e#a$ining the or; of Ar. 5uentes and finding it in order> %+( granting Ar. 5uentes- per$ission to leave> and %3( ordering the closure of the incision. ,t as this act of ordering the closure of the incision not ithstanding that t o pieces of gau6e re$ained unaccounted for, that caused injur! to <atividad-s bod!. 0learl!, the control and $anage$ent of the thing hich caused the injur! as in the hands of Ar. A$pil, not Ar. 5uentes. ,n this jurisdiction, res ipsa loquitur is not a rule of substantive la , hence, does not per se create or constitute an independent or separate ground of liabilit!, being a $ere evidentiar! rule. ,n other ords, $ere invocation and application of the doctrine does not dispense ith the re)uire$ent of proof of negligence. .ere, the negligence as proven to have been co$$itted b! Ar. A$pil and not b! Ar. 5uentes. %+( Hhether P', is liable for the negligence of Ar. A$pil. The third issue necessitates a gli$pse at the historical develop$ent of hospitals and the resulting theories concerning their liabilit! for the negligence of ph!sicians. Dntil the $idEnineteenth centur!, hospitals ere generall! charitable institutions, providing $edical services to the lo est classes of societ!, ithout regard for a patient-s abilit! to pa!. Those ho could afford $edical treat$ent ere usuall! treated at ho$e b! their doctors. .o ever, the da!s of house calls and philanthropic health care are over. The $odern health care industr! continues to distance itself fro$ its charitable past and has e#perienced a significant conversion fro$ a notEforEprofit health care to forEprofit hospital business. 0onse)uentl!, significant changes in health la have acco$panied the businessErelated changes in the hospital industr!. 1ne i$portant legal change is an increase in hospital liabilit! for $edical $alpractice. 9an! courts no allo clai$s for hospital vicarious liabilit! under the theories of resondeat superior, apparent authorit!, ostensible authorit!, or agenc! b! estoppel. The statute governing liabilit! for negligent acts is Article 21?= of the 0ivil 0ode, hich reads* Article 21?=. Hhoever b! act or o$ission causes da$age to another, there being fault or negligence, is obliged to pa! for the da$age done. 'uch fault or negligence, if there is no preEe#isting

36

contractual relation bet een the parties, is called a )uasiEdelict and is governed b! the provisions of this 0hapter. A derivated of this provision is Article 2120, the rule governing vicarious liabilit! under the doctrine of respondeat superior, thus* Article 2120. The obligation i$posed b! Article 21?= is de$andable not onl! for one-s o n acts or o$issions, but also for those of persons for ho$ one is responsible. ### ###

The o ners and $anagers of an establish$ent or enterprise are li;e ise responsible for da$ages caused b! their e$plo!ees in the service of the branches in hich the latter are e$plo!ed or on the occasion of their functions. "$plo!ers shall be liable for the da$ages caused b! their e$plo!ees and household helpers acting ithin the scope of their assigned tas;s even though the for$er are not engaged in an! business or industr!. ### ###

The responsibilit! treated of in this article shall cease hen the persons herein $entioned prove that the! observed all the diligence of a good father of a fa$il! to prevent da$age. Professionals engaged b! an e$plo!er, such as ph!sicians, dentists, and phar$acists, are not Fe$plo!eesG under this article because the $anner in hich the! perfor$ their or; is not ithin the control of the latter %e$plo!er(. ,n other ords, professionals are considered personall! liable for the fault or negligence the! co$$it in the discharge of their duties, and their e$plo!er cannot be held liable for such fault or negligence. ,n the conte#t of the present case, Fa hospital cannot be held liable for the fault or negligence of a ph!sician or surgeon in the treat$ent or operation of patients. 'uch vie is grounded on the traditional notion that the professional status and the ver! nature of the ph!sician-s calling preclude hi$ fro$ being classed as an agent or e$plo!ee of a hospital, henever he acts in a professional capacit!. ,t has been said that $edical practice strictl! involves highl! developed and speciali6ed ;no ledge, such that ph!sicians are generall! free to e#ercise their o n s;ill and judg$ent in rendering $edical services sans interference. .ence, hen a doctor practices $edicine in a hospital setting, the hospital and its e$plo!ees are dee$ed to subserve hi$ in his $inistrations to the patient and his actions are of his o n responsibilit!.

37

The case of !c)loendorff v. !ociet" of /e0 1or+ -ospital , 211 <.L. 128, 108 <.". 92, 82 :.R.A., <.'. 808 %1913(, as then considered an authorit! for this vie . The F!c)loendorff doctrineG regards a ph!sician, even if e$plo!ed b! a hospital, as an independent contractor because of the s;ill he e#ercises and the lac; of control e#erted over his or;. Dnder this doctrine, hospitals are e#e$pt fro$ the application of the respondeat superior principle for fault or negligence co$$itted b! ph!sicians in the discharge of their profession. .o ever, the efficac! of such doctrine has ea;ened ith the significant develop$ents in $edical care. 0ourts ca$e to reali6e that $odern hospitals are increasingl! ta;ing active role in suppl!ing and regulating $edical care to patients. <o longer ere a hospital-s functions li$ited to furnishing roo$, food, facilities for treat$ent and operation, and attendants for its patients. Thus, in ,ing v. #)unig, 2 <.L. 2d =8=, 1=+ <L' 2d +, 13+ %198?(, the <e Lor; 0ourt of Appeals deviated fro$ the !c)loendorff doctrine, noting that $odern hospitals actuall! do far $ore than provide facilities for treat$ent. Rather, the! regularl! e$plo!, on a salaried basis, a large staff of ph!sicians, interns, nurses, ad$inistrative and $anual or;ers. The! charge patients for $edical care and treat$ent, even collecting for such services through legal action, if necessar!. The court then concluded that there is no reason to e#e$pt hospitals fro$ the universal rule of respondeat superior. ,n our shores, the nature of the relationship bet een the hospital and the ph!sicians is rendered inconse)uential in vie of our categorical pronounce$ent in Ramos v. Court of Appeals, that for purposes of apportioning responsibilit! in $edical negligence cases, an e$plo!erEe$plo!ee relationship in effect e#ists bet een hospitals and their attending and visiting ph!sicians. Thus, it as held* FHe no discuss the responsibilit! of the hospital in this particular incident. The uni)ue practice %a$ong private hospitals( of filling up specialist staff ith attending and visiting FconsultantsG, ho are allegedl! not hospital e$plo!ees, presents proble$s in apportioning responsibilit! for negligence in $edical $alpractice cases. .o ever, the difficult! is $ore apparent than real. ,n the first place, hospitals e#ercise significant control in the hiring and firing of consultants and in the conduct of their or; ithin the hospital pre$ises. Aoctors ho appl! for Jconsultantslots, visiting or attending, are re)uired to sub$it proof of co$pletion of residenc!, their educational )ualifications, generall!, evidence of accreditation b! the appropriate board %diplo$ate(, evidence of fello ship in $ost cases, and references. These re)uire$ents are carefull! scrutini6ed b! $e$bers of the hospital ad$inistration or b! a revie co$$ittee set up b! the hospital ho either accept or reject the application.

38

After a ph!sician is accepted, either as a visiting or attending consultant, he is nor$all! re)uired to attend clinicoEpathological conferences, conduct bedside rounds for cler;s, interns and residents, $oderate grand rounds and patient audits and perfor$ other tas;s and responsibilities, for the privilege of being able to $aintain a clinic in the hospital, andKor for the privilege of ad$itting patients into the hospital. ,n addition to these, the ph!sician-s perfor$ance as a specialist is generall! evaluated b! a peer revie co$$ittee on the basis of $ortalit! and $orbidit! statistics, and feedbac; fro$ patients, nurses, interns and residents. A consultant re$iss in his duties, or a consultant ho regularl! falls short of the $ini$u$ standards acceptable to the hospital or its peer revie co$$ittee, is nor$all! politel! ter$inated. ,n other ords, private hospitals, hire, fire and e#ercise real control over their attending and visiting Jconsultant- staff. Hhile Jconsultants- are not, technicall! e$plo!ees, # # # , the control e#ercised, the hiring, and the right to ter$inate consultants all fulfill the i$portant hall$ar;s of an e$plo!erEe$plo!ee relationship, ith the e#ception of the pa!$ent of ages. ,n assessing hether such a relationship in fact e#ists, the control test is deter$ining. Accordingl!, on the basis of the foregoing, e rule that for the purpose of allocating responsibilit! in $edical negligence cases, an e$plo!erEe$plo!ee relationship in effect e#ists bet een hospitals and their attending and visiting ph!sicians.G oct%ine of appa%ent autho%ity) etc. The Ramos pronounce$ent is not the onl! basis in sustaining P',-s liabilit!. ,ts liabilit! is also anchored upon the agenc! principle of apparent authorit! or agenc! b! estoppel and the doctrine of corporate negligence hich have gained acceptance in the deter$ination of a hospital-s liabilit! for negligent acts of health professionals. oct%ine of appa%ent autho%ity o% the holding out theo%y( o% doct%ine of ostensible agency o% agency by estoppel. This doctrine i$poses liabilit!, not as the result of the realit! of a contractual relationship, but rather because of the actions of a principal or an e$plo!er in so$eho $isleading the public into believing that the relationship or the authorit! e#ists. %,rving v. Aoctors .ospital of :a;e Horth, ,nc., 318 'o. 2d 88 %1922(, )uoting Arthur v. 't. Peters .ospital, 1=9 <.7. 8?8, 308 A 2d 33+ %19?9((. The concept is essentiall! one of estoppel.

39

Dnder the rule, the principal is bound b! the acts of his agent ith the apparent authorit! hich he ;no ingl! per$its the agent to assu$e, or hich he holds to the agent out to the public as possessing. The )uestion in ever! case is hether the principal has b! his voluntar! act placed the agent ith business usages and the nature of the particular business, is justified in presu$ing that such agent has authorit! to perfor$ the particular act in )uestion. %.udson 0., :oan Assn., ,nc. v. .oro !t6, 11= <.7.:. =08, =02 A 3+? %'upp. 0t. 19+=(. The applicabilit! of the doctrine of apparent authorit! in the field of hospital liabilit! has been upheld in %rving v. Doctor -ospital of a+e 2ort) %nc .. ,n this case, it as said that there does not appear to be an! rational basis for e#cluding the concept of apparent authorit! fro$ the field of hospital liabilit!. ,n cases here it can be sho n that a hospital, b! its actions, has held out a particular ph!sician as its agent andKor e$plo!ee and that the patient has accepted treat$ent fro$ the ph!sician in the reasonable belief that it is being tendered in behalf of the hospital, then the hospital ill be liable for the ph!sician-s negligence. The 0ivil 0ode recogni6es the concept of agenc! b! i$plication or estoppel. Article 12=9 of the 0ivil 0ode provides* FAgenc! $a! be e#press, or i$plied fro$ the acts of the principal, fro$ his silence or lac; of action, or his failure to repudiate the agenc!, ;no ing that another person is acting on his behalf ithout authorit!.G The defendant Professional 'ervices, ,nc. displa!ed in the lobb! of the 9edical 0it! .ospital the na$es and speciali6ations of the ph!sicians associated or accredited b! it. ,t is estopped fro$ passing all bla$e to the ph!sicians hose na$es it proudl! paraded in the public director! leading the public to believe that it vouched for their s;ill and co$petence. That is tanta$ount to holding out to the public that the hospital through its accredited ph!sicians, offers )ualit! health care services. /! accrediting the doctors and publicl! advertising their )ualifications, the hospital created the i$pression that the! ere agents, authori6ed to perfor$ $edical and surgical services for its patients. As e#pected, the patients accepted the services on the reasonable belief that such ere being rendered b! the hospital or its e$plo!ees, agents or servants. As aptl! said b! the trial court* F# # # regardless of the education and status in life of the patient, he ought not be burdened ith the defense of absence of e$plo!erE e$plo!ee relationship bet een the hospital and the independent ph!sician hose na$e and co$petence are certainl! certified to the general public b! the hospital-s act of listing hi$ and his

40

specialt! in its lobb!. The high costs of toda!-s $edical and health care should not at least e#act on the hospital greater, if not broader, legal responsibilit! for the conduct of treat$ent and surger! ithin its facilit! b! its accredited ph!sician or surgeon, regardless of hether he is independent or e$plo!ed.G The isdo$ of such reasoning is eas! to discern. 0orporate entities li;e hospitals are capable of acting onl! through other individuals li;e ph!sicians. ,f these accredited ph!sicians do their job ell, the hospital succeeds in its $ission of offering )ualit! $edical services and thus, profits financiall!. :ogicall!, here negligence $ars the )ualit! of its services, the hospital should not be allo ed to escape liabilit! for the acts of its ostensible agents. %Professional 'ervices, ,nc. v. Agana, 4.R. <o. 12=29?> Agana v. 7uan 5uentes, 4.R. <o. 12=3=?> A$pil v. Agana, 4.R. <o. 12?890, 7anuar! +1, 200?(. oct%ine of co%po%ate negligence o% co%po%ate %esponsibility. The co$plaint alleged that P', as o ner, operator and $anager of 9edical 0it! .ospital did not perfor$ the necessar! supervision or e#ercise diligent efforts in the supervision of Ar. A$pil and 5uentes and its nursing staff, resident doctors, $edical interns ho assisted the doctors in the perfor$ance of their duties. .ence, pre$ised on the doctrine of corporate negligence, P', is directl! liable for such breach of dut!. ,s the contention correctI Hh!I *eld$ Les. ,t as dul! established that P', operates the 9edical 0it! .ospital for the purpose and under the concept of providing co$prehensive $edical services to the public. Accordingl!, it has the dut! to e#ercise reasonable care to protect fro$ har$ all patients ad$itted into its facilit! for $edical treat$ent. Dnfortunatel!, P', failed to perfor$ such dut!. The findings of the trial court are convincing, thus* # # # # 3SI:s liability is t%aceable to its failu%e to conduct an investigation of the 'atte% %epo%ted in the nota bene of the count nu%se. Such failu%e established 3SI:s pa%t in the da%@ conspi%acy of silence and conceal'ent about the gauCes. "thical considerations, if not also legal, dictated the holding of an i$$ediate in)uir! into the events, if not for the benefit of the patient to ho$ the dut! is pri$aril! o ed, then in the interest of arriving at the truth. The 0ourt cannot accept that the $edical and the healing professions, through their $e$bers li;e defendant surgeons, and their institutions li;e P',-s hospital facilit!, can callousl! turn their bac;s on and disregard even a $ere probabilit! of $ista;e or

41

negligence b! refusing or failing to investigate a report of such seriousness as the one in <atividad-s case. ,t is orth! to note that Ar. A$pil and Ar. 5uentes operated on <atividad ith the assistance of the 9edical 0it! .ospital-s staff, co$posed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that P',, as the operator of the hospital, has actual or constructive ;no ledge of the procedures carried out, particularl! the report of the attending nurses that the t o pieces of gau6e ere $issing. ,n &ridena v. Evans,12? Ari6. 81=, =22 P. 2d 3=+ %1920(, it as held that a corporation is bound b! the ;no ledge ac)uired b! or notice given to its agents or officers ithin the scope of their authorit! and in reference to a $atter to hich their authorit! e#tends. This $eans that the ;no ledge of an! of the staff of 9edical 0it! .ospital constitutes ;no ledge of P',. The failure of P',, despite the attending nurses- report, to investigate and infor$ the patient regarding the $issing gau6es a$ounts to callous negligence. <ot onl! did P', breach its duties to oversee or supervise all persons ho practice $edicine ithin its alls, it also failed to ta;e an active step in fi#ing the negligence co$$itted. This renders P',, not onl! vicariousl! liable for the negligence of Ar. A$pil under Article 2120 of the 0ivil 0ode, but also directl! liable for its o n negligence under Article 21?=. ,n &ridena, the 'upre$e 0ourt of Ari6ona held* # # # ,n recent !ears, ho ever, the dut! of care o ed to the patient b! the hospital has e#panded. The e$erging trend is to hold the hospital responsible here the hospital has failed to $onitor and revie $edical services being provided ithin its alls. 'ee 3a)n -ospital (alpractice $revention, 2? Ae Paul. Rev. 2+ %19??(. A$ong the cases indicative of the Je$erging trend- is $urcell v. .imbelman, 12 Ari6. App. ?8,800 P. 2d ++8 %19?2(. ,n $urcell, the hospital argued that it could not be held liable for the $alpractice of a $edical practitioner because he as an independent contractor ithin the hospital. The 0ourt of Appeals pointed out that the hospital had created a professional staff hose co$petence and perfor$ance as to be $onitored and revie ed b! the governing bod! of the hospital, and the court held that a hospital ould be negligent here it had ;no ledge or reason to believe that a doctor using the facilities as e$plo!ing a $ethod of treat$ent or care hich fell belo the recogni6ed standard of care. 'ubse)uent to the $urcell decision, the Ari6ona 0ourt of Appeals held that a hospital has certain inherent responsibilities regarding the )ualit! of $edical care furnished to patients ithin its alls and it $ust $eet the standards of responsibilit! co$$ensurate ith this underta;ing. ,eec+ v. #ucson 'eneral -ospital, 12 Ari6. App. 1=8, 800 P. 2d 118+ %19?2(. This court has

42

confir$ed the rulings of the 0ourt of Appeals that a hospital has the dut! of supervising the co$petence of the doctors on its staff. ###. ### ###

,n the a$ended co$plaint, the plaintiffs did plead that the operation as perfor$ed at the hospital ith its ;no ledge, aid, and assistance, and that the negligence of the defendants as the pro#i$ate cause of the patient-s injuries. He find that such general allegations of negligence, along ith the evidence produced at the trial of this case, are sufficient to support the hospital-s liabilit! based on the theor! of negligent supervision.G Anent the corollar! issue of hether P', is solidaril! liable ith Ar. A$pil for da$ages, let it be e$phasi6ed that P',, apart fro$ a general denial of its responsibilit!, failed to adduce evidence sho ing that it e#ercised the diligence of a good father of a fa$il! in the accreditation and supervision of the latter. ,n neglecting to offer such proof, P', failed to discharge its burden under the last paragraph of Article 2120 cited earlier, and, therefore, $ust be adjudged solidaril! liable ith Ar. A$pil. 9oreover, as e have discussed, P', is also directl! liable to the Aganas. 1ne final ord. 1nce a ph!sician underta;es the treat$ent and care of a patient, the la i$poses on hi$ certain obligations. ,n order to escape liabilit!, he $ust possess that reasonable degree of learning, s;ill and e#perience re)uired b! his profession. At the sa$e ti$e, he $ust appl! reasonable care and diligence in the e#ercise of his s;ill and the application of his ;no ledge, and e#ert his best judg$ent. *isto%y of the doct%ine of co%po%ate negligence. Recent !ears have seen the doctrine of corporate negligence as the judicial ans er to the proble$ of allocating hospital-s liabilit! for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authorit!. ,ts for$ulation proceeds fro$ the judiciar!-s ac;no ledg$ent that in these $odern ti$es, the dut! of providing )ualit! $edical service is no longer the sole prerogative and responsibilit! of the ph!sician. The $odern hospitals have changed structure. .ospitals no tend to organi6e a highl!Eprofessional $edical staff hose co$petence and perfor$ance need to be $onitored b! the hospitals co$$ensurate ith their inherent responsibilit! to provide )ualit! $edical care. %Purcell v. Oi$ber$an, 12 Ari6. App. ?8, 800 P 2d ++8 %19?2((. The doctrine has its genesis in Darling v. C)arleston Communit" -ospital , ++ ,ll. 2d +2=, 211 <.". 2d 28+(. There, the 'upre$e 0ourt of ,llinois held that

43

Fthe jur! could have found a hospital negligent, inter alia, in failing to have a sufficient nu$ber of trained nurses attending the patient> failing to re)uire a consultation ith or e#a$ination b! $e$bers of the hospital staff> and failing to revie the treat$ent rendered to the patient.G 1n the basis of Darling, other jurisdictions held that a hospital-s corporate negligence e#tends to per$itting a ph!sician ;no n to be inco$petent to practice at the hospital. %0orleto v. .ospital, 1+2 <.7. 'uper. +02, +80 A. 2d 8+3 %'uper. 0t. :a Aiv. 19?8(> Purcell v. Oi$bel$an, 12 Ari6. App. ?8,800 P. 2d ++8 %19?2(> .ospital Authorit! v. 7oiner, 229 4a. 130, 129 '.". 2d 312 %19?2((. Hith the passage of ti$e, $ore duties ere e#pected fro$ hospitals, a$ong the$* %1( the use of reasonable care in the $aintenance of safe and ade)uate facilities and e)uip$ent> %2( the selection and retention of co$petent ph!sicians> %+( the overseeing or supervision of all persons ho practice $edicine ithin its alls> and %3( the for$ulation, adoption and enforce$ent of ade)uate rules and policies that ensure )ualit! care for its patients. %Helsh v. /ulger, 832 Pa. 803, =92 A. 2d 821 %199?((. Thus, in #ucson (edical Center, %nc. v. (isevic) , 118 Ari6. +3, 838 P 2d 982 %19?=(, it as held that a hospital, follo ing the doctrine of corporate responsibilit!, has the dut! to see that it $eets the standards of responsibilities for the care of patients. 'uch dut! includes the proper supervision of the $e$bers of its $edical staff. And in ,ost v. Rile", 2=2 '.". 2d +91, +00 <0 193, 2=9 '.". 2d =21 %1920(, the court concluded that a patient ho enters a hospital does so ith the reasonable e#pectation that it ill atte$pt to cure hi$. The hospital accordingl! has the dut! to $a;e a reasonable effort to $onitor and oversee the treat$ent prescribed and ad$inistered b! the ph!sicians practicing in its pre$ises. tl! liable for such breach of dut!. ,s the contention correctI Hh!I *eld$ Les. ,t as dul! established that P', operates the 9edical 0it! .ospital for the purpose and under the concept of providing co$prehensive $edical services to the public. Accordingl!, it has the dut! to e#ercise reasonable care to protect fro$ har$ all patients ad$itted into its facilit! for $edical treat$ent. Dnfortunatel!, P', failed to perfor$ such dut!. The findings of the trial court are convincing, thus* # # # # 3SI:s liability is t%aceable to its failu%e to conduct an investigation of the 'atte% %epo%ted in the nota bene of the count nu%se. Such failu%e established 3SI:s pa%t in the da%@ conspi%acy of silence and conceal'ent about the gauCes. "thical considerations, if not also legal, dictated the holding of an i$$ediate in)uir! into the events, if not for the benefit of the patient to ho$ the dut! is pri$aril! o ed, then in the interest of arriving at the truth. The 0ourt cannot accept that the $edical and the healing professions, through their $e$bers li;e defendant surgeons, and their institutions li;e P',-s hospital facilit!, can callousl! turn their

44

bac;s on and disregard even a $ere probabilit! of $ista;e or negligence b! refusing or failing to investigate a report of such seriousness as the one in <atividad-s case. ,t is orth! to note that Ar. A$pil and Ar. 5uentes operated on <atividad ith the assistance of the 9edical 0it! .ospital-s staff, co$posed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that P',, as the operator of the hospital, has actual or constructive ;no ledge of the procedures carried out, particularl! the report of the attending nurses that the t o pieces of gau6e ere $issing. ,n &ridena v. Evans,12? Ari6. 81=, =22 P. 2d 3=+ %1920(, it as held that a corporation is bound b! the ;no ledge ac)uired b! or notice given to its agents or officers ithin the scope of their authorit! and in reference to a $atter to hich their authorit! e#tends. This $eans that the ;no ledge of an! of the staff of 9edical 0it! .ospital constitutes ;no ledge of P',. The failure of P',, despite the attending nurses- report, to investigate and infor$ the patient regarding the $issing gau6es a$ounts to callous negligence. <ot onl! did P', breach its duties to oversee or supervise all persons ho practice $edicine ithin its alls, it also failed to ta;e an active step in fi#ing the negligence co$$itted. This renders P',, not onl! vicariousl! liable for the negligence of Ar. A$pil under Article 2120 of the 0ivil 0ode, but also directl! liable for its o n negligence under Article 21?=. ,n &ridena, the 'upre$e 0ourt of Ari6ona held* # # # ,n recent !ears, ho ever, the dut! of care o ed to the patient b! the hospital has e#panded. The e$erging trend is to hold the hospital responsible here the hospital has failed to $onitor and revie $edical services being provided ithin its alls. 'ee 3a)n -ospital (alpractice $revention, 2? Ae Paul. Rev. 2+ %19??(. A$ong the cases indicative of the Je$erging trend- is $urcell v. .imbelman, 12 Ari6. App. ?8,800 P. 2d ++8 %19?2(. ,n $urcell, the hospital argued that it could not be held liable for the $alpractice of a $edical practitioner because he as an independent contractor ithin the hospital. The 0ourt of Appeals pointed out that the hospital had created a professional staff hose co$petence and perfor$ance as to be $onitored and revie ed b! the governing bod! of the hospital, and the court held that a hospital ould be negligent here it had ;no ledge or reason to believe that a doctor using the facilities as e$plo!ing a $ethod of treat$ent or care hich fell belo the recogni6ed standard of care. 'ubse)uent to the $urcell decision, the Ari6ona 0ourt of Appeals held that a hospital has certain inherent responsibilities regarding the )ualit! of $edical care furnished to patients ithin its alls and it $ust $eet the standards of responsibilit! co$$ensurate ith this underta;ing. ,eec+ v. #ucson 'eneral

45

-ospital, 12 Ari6. App. 1=8, 800 P. 2d 118+ %19?2(. This court has confir$ed the rulings of the 0ourt of Appeals that a hospital has the dut! of supervising the co$petence of the doctors on its staff. ###. ### ###

,n the a$ended co$plaint, the plaintiffs did plead that the operation as perfor$ed at the hospital ith its ;no ledge, aid, and assistance, and that the negligence of the defendants as the pro#i$ate cause of the patient-s injuries. He find that such general allegations of negligence, along ith the evidence produced at the trial of this case, are sufficient to support the hospital-s liabilit! based on the theor! of negligent supervision.G Anent the corollar! issue of hether P', is solidaril! liable ith Ar. A$pil for da$ages, let it be e$phasi6ed that P',, apart fro$ a general denial of its responsibilit!, failed to adduce evidence sho ing that it e#ercised the diligence of a good father of a fa$il! in the accreditation and supervision of the latter. ,n neglecting to offer such proof, P', failed to discharge its burden under the last paragraph of Article 2120 cited earlier, and, therefore, $ust be adjudged solidaril! liable ith Ar. A$pil. 9oreover, as e have discussed, P', is also directl! liable to the Aganas. 1ne final ord. 1nce a ph!sician underta;es the treat$ent and care of a patient, the la i$poses on hi$ certain obligations. ,n order to escape liabilit!, he $ust possess that reasonable degree of learning, s;ill and e#perience re)uired b! his profession. At the sa$e ti$e, he $ust appl! reasonable care and diligence in the e#ercise of his s;ill and the application of his ;no ledge, and e#ert his best judg$ent. *isto%y of the doct%ine of co%po%ate negligence. Recent !ears have seen the doctrine of corporate negligence as the judicial ans er to the proble$ of allocating hospital-s liabilit! for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authorit!. ,ts for$ulation proceeds fro$ the judiciar!-s ac;no ledg$ent that in these $odern ti$es, the dut! of providing )ualit! $edical service is no longer the sole prerogative and responsibilit! of the ph!sician. The $odern hospitals have changed structure. .ospitals no tend to organi6e a highl!Eprofessional $edical staff hose co$petence and perfor$ance need to be $onitored b! the hospitals co$$ensurate ith their inherent responsibilit! to provide )ualit! $edical care. %Purcell v. Oi$ber$an, 12 Ari6. App. ?8, 800 P 2d ++8 %19?2((.

46

The doctrine has its genesis in Darling v. C)arleston Communit" -ospital , ++ ,ll. 2d +2=, 211 <.". 2d 28+(. There, the 'upre$e 0ourt of ,llinois held that Fthe jur! could have found a hospital negligent, inter alia, in failing to have a sufficient nu$ber of trained nurses attending the patient> failing to re)uire a consultation ith or e#a$ination b! $e$bers of the hospital staff> and failing to revie the treat$ent rendered to the patient.G 1n the basis of Darling, other jurisdictions held that a hospital-s corporate negligence e#tends to per$itting a ph!sician ;no n to be inco$petent to practice at the hospital. %0orleto v. .ospital, 1+2 <.7. 'uper. +02, +80 A. 2d 8+3 %'uper. 0t. :a Aiv. 19?8(> Purcell v. Oi$bel$an, 12 Ari6. App. ?8,800 P. 2d ++8 %19?2(> .ospital Authorit! v. 7oiner, 229 4a. 130, 129 '.". 2d 312 %19?2((. Hith the passage of ti$e, $ore duties ere e#pected fro$ hospitals, a$ong the$* %1( the use of reasonable care in the $aintenance of safe and ade)uate facilities and e)uip$ent> %2( the selection and retention of co$petent ph!sicians> %+( the overseeing or supervision of all persons ho practice $edicine ithin its alls> and %3( the for$ulation, adoption and enforce$ent of ade)uate rules and policies that ensure )ualit! care for its patients. %Helsh v. /ulger, 832 Pa. 803, =92 A. 2d 821 %199?((. Thus, in #ucson (edical Center, %nc. v. (isevic) , 118 Ari6. +3, 838 P 2d 982 %19?=(, it as held that a hospital, follo ing the doctrine of corporate responsibilit!, has the dut! to see that it $eets the standards of responsibilities for the care of patients. 'uch dut! includes the proper supervision of the $e$bers of its $edical staff. And in ,ost v. Rile", 2=2 '.". 2d +91, +00 <0 193, 2=9 '.". 2d =21 %1920(, the court concluded that a patient ho enters a hospital does so ith the reasonable e#pectation that it ill atte$pt to cure hi$. The hospital accordingl! has the dut! to $a;e a reasonable effort to $onitor and oversee the treat$ent prescribed and ad$inistered b! the ph!sicians practicing in its pre$ises. Negligence; its concept. In PNR, et al. vs. CA, et al., G.R. No. 157658, October 15, 2007, once against the SC held PNR liable for damages due to its failure to provide safety measures for the protection of the lives and limbs of commuters crossing its railroad tracks. In fact, such negligent acts resulted in the death of a commuter. In the early afternoon of April 27, 1992, Jose Amores was traversing the railroad tracks in Kahilum II Street, Pandacan, Manila. Before crossing the railroad track, he stopped for a while then proceeded accordingly. Unfortunately, just as Amores was at the intersection, a Philippine National Railways' (PNR) train turned up and collided with the car. At the time of the mishap, there was neither a signal nor a crossing bar at the intersection to warn motorists of an approaching train. Aside from the railroad track, the only visible warning sign at that time was the defective standard signboard STOP, LOOK and LISTEN wherein the sign Listen was lacking 47

while that of Look was bent. No whistle blow from the train was likewise heard before it finally bumped the car of Amores. After impact, the car was dragged about ten (10) meters beyond the center of the crossing. Amores died as a consequence thereof. In their complaint, respondent averred that the train's speedometer was defective, and that the petitioners' negligence was the proximate cause of the mishap for their failure to take precautions to prevent injury to persons and property despite the dense population in the vicinity. They then prayed for actual and moral damages, as well as attorneys fees. In their Answer, the petitioners denied the allegations, stating that the train was railroad-worthy and without any defect. According to them, the proximate cause of the death of Amores was his own carelessness and negligence, and Amores wantonly disregarded traffic rules and regulationss in crossing the railroad tracks and trying to beat the approaching train. They admitted that there was no crossing bar at the site of the accident because it was merely a barangay road. PNR stressed that it exercised the diligence of a good father of a family in the selection and supervision of the locomotive driver and train engineer, Borja, and that the latter likewise used extraordinary diligence and caution to avoid the accident. Petitioners further asserted that respondents had the last clear chance to avoid the accident but recklessly failed to do so. After trial on the merits, the RTC dismissed the complaint ruling that the proximate cause of the collision was Amores' fatal misjudgment and the reckless course of action he took in crossing the railroad track even after seeing or hearing the oncoming train. On appeal, the CA reversed the RTC decision and found the petitioners negligent. The court based the petitioners' negligence on the failure of the PNR to install a semaphore or at the very least, to post a flagman, considering that the crossing is located in a thickly populated area. Moreover, the signboard Stop, Look and Listen was found insufficient because of its defective condition as described above. Lastly, no negligence could be attributed to Amores as he exercised reasonable diligence in crossing the railroad track, hence, a petition for review on certiorari was filed with the SC reiterating their contentions. Held: The SC held that petitioners liable for damages due to their negligence, ruling that whenever 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 was no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions of this chapter.(Art. 2176, NCC).

48

Negligence has been defined as the failure to observe for the protection of the interest of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. Using the aforementioned philosophy, it may be reliably concluded that there is no hard and fast rule whereby such degree of care and vigilance is calibrated; it is dependent upon the circumstances in which a person finds himself. All that the law requires is that it is perpetually compelling upon a person to use that care and diligence expected of sensible men under comparable circumstances. The petitioners were negligent when the collision took place. The train was running at a fast speed because notwithstanding the application of the ordinary and emergency brakes, the train still dragged the car some distance away from the point of impact. Evidence likewise unveils the inadequate precautions taken by petitioner PNR to forewarn the public of the impending danger. Aside from not having any crossing bar, no flagman or guard to man the intersection at all times was posted on the day of the incident. A reliable signaling device in good condition, not just a dilapidated Stop, Look and Listen signage because of many years of neglect, is needed to give notice to the public. It is the responsibility of the railroad company to use reasonable care to keep the signal devices in working order. Failure to do so would be an indication of negligence. As held in the case of Philippine National Railway vs. Brunty, 90 SCRA 357 ([1979]), it may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties pertain both to the operation of trains and to the maintenance of the crossings. Moreover, every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road, good, sufficient, and safe crossings, and erect at such points, at sufficient elevation from such road as to admit a free passage of vehicle of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains. The failure of the PNR to put a cross bar, or signal light, flagman or switchman, or semaphore is evidence of negligence and disregard of the safety of the public, even if thre is no law or ordinance requiring it, because public safety demands that said device or equipment be installed. Right-of-way in a railroad crossing. The petitioners insist that a train has a right-of-way in a railroad crossing under the existing laws. They derive their theory from Section 42(d), Article III of

49

R.A. No. 4136, otherwise known as the Land Transportation and Traffic Code, which stattes that: The driver of a vehicle upon a highway shall bring to a full stop such vehicle before traversing any through highway or railroad crossing: Provided, That when it is apparent that no hazard exists, the vehicle may be slowed down to five miles per hour instead of bringing it to a full stop. They claim that motorists are enjoined by law to stop, look and listen before crossing railroad tracks and that a heavier responsibility rests upon the motorists in avoiding accidents at level crossings. It is true that one driving an automobile must use his faculties of seeing and hearing when nearing a railroad crossing. However, the obligation to bring to a full stop vehicles moving in public highways before traversing any through street only accrues from the time the said through street or crossing is so designated and sign-posted. Amores exercised all the necessary precautions required of him as to avoid injury to himself and to others since he slackened his speed, made a full stop, and then proceeded to cross the tracks when he saw that there was no impending danger to his life. He did everything, with absolute care and caution, to avoid the collision. It is settled that every person or motorist crossing a railroad track should use ordinary prudence and alertness to determine the proximity of a train before attempting to cross, for no person would sacrifice his precious life if he had the slightest opportunity to evade the catastrophe. Besides, the authority in this jurisdiction is that the failure of a railroad company to install a semaphore or at the very least, to post a flagman or watchman to warn the public of the passing train amounts to negligence. (PNR vs. Intermediate Appeallate Court, G.R. No. 70547, January 22, 1993, 271 SCRA 401, 416, citing Lilius vs. Manila Railroad Company, 59 Phil. 758 ([1934]). Liability of PNR. The liability of petitioner PNR is governed by Article 2180 of the New Civil Code which discusses the liability of the employer once negligence or fault on the part of the employee has been established. The employer is actually liable on the assumption of juris tantum that the employer failed to exercise diligentissimi patris families 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 demonstrated.

50

(Light Railway Transit Authority vs. Natividad, 397 SCRA 75 ([2003]). Even the existence of hiring procedures and supervisory employees cannot be incidentally invoked to overturn the presumption of negligence on the part of the employer. (Fabre, Jr. vs. CA, G.R. No. 111127, July 26, 1996, 259 SCRA 426, 434-435, citing Metro Manila Transit Corp. vs. CA, 233 SCRA 521 ([1993]); Campo vs. Camarote, 100 Phil. 459 ([1956]).

.%o' sc.dec.66&68
D/ASI& ELICT and Liability of hospitals unde% the doct%ine of appa%ent autho%ity and doct%ine of co%po%ate negligence. The case of $rofessional !ervices, %nc. v. Agana, 4.R. <o. 12=29?> Agana, et al. v. &uentes, 4.R. <o. 12=3=?> Ampil v. Agana, et al., 4.R. <o. 12?890, 7anuar! +1, 200? set the precedent for the liabilit! of hospitals for the negligence of doctors e$plo!ed b! it, or even consultants. The '0 said that courts in holding a hospital liable for da$ages, having underta;en one of $an;ind-s $ost i$portant and delicate endeavors, $ust assu$e the grave responsibilit! of pursuing it ith appropriate care. The care and service dispensed through this high trust, ho ever technical, co$ple# and esoteric its character $a! be, $ust $eet standards of responsibilit! co$$ensurate ith the underta;ing to preserve and protect the health, and indeed, the ver! lives of those placed in the hospital-s ;eeping. %/eec; v. Tu6on 4eneral .ospital, 800 P. 2d 118+ %19?2(, citing Aarling v. 0harleston 0o$$unit! 9e$orial .ospital, ++ ,ll. 2d +2=, 211 <.". 2d 28+(. Ar. A$pil, assisted b! the $edical staff of the 9edical 0it! .ospital, perfor$ed an anterior resection surger! on <atividad. .e found that the $alignanc! in her sig$oid area had spread on her left ovar!, necessitating the re$oval of certain portions of it. Thus, Ar. A$pil obtained the consent of <atividad-s husband, "nri)ue Agana, to per$it Ar. 7uan 5uentes, to perfor$ h!sterecto$! on her. After Ar. 5uentes had co$pleted the h!sterecto$!, Ar. A$pil too; over, co$pleted the operation and closed the incision. The operation appeared to be fla ed, because the attending nurse entered these re$ar;s* =sponge count lac@ing A A!A"ES

51

=announced to su%geon sea%ched 0sic1 done but to no avail continue fo% closu%e.> <atividad as released fro$ the hospital, but later on co$plained of e#cruciating pain in her anal region. 'he consulted both doctors about it. The! told her that the pain is the natural conse)uence of the surger!. Ar. A$pil then reco$$ended that she consult an oncologist to e#a$ine the cancerous nodes hich ere not re$oved during the operation. Acco$panied b! her husband she ent to the Dnited 'tates to see; further treat$ent. After four $onths of consultations and laborator! e#a$inations, she as told she as free of cancer. .ence, she as advised to return to the Philippines. After her return to the Philippines, her daughter found a piece of gau6e protruding fro$ her vagina. Dpon being infor$ed about it, Ar. A$pil proceeded to her house here he $anaged to e#tract b! hand a piece of gau6e $easuring 1.8 inches in idth. .e then assured her that the pains ould soon vanish. Ar. A$pil-s assurance did not co$e true. ,nstead, the pains intensified, pro$pting <atividad to see; treat$ent at the Pol!$edic 4eneral .ospital. Hhile confined there, Ar. Ra$on 4utierre6 detected the presence of another foreign object in her vagina a foulEs$elling gau6e $easuring 1.8 inches in idth badl! infected her vaginal vault. A rectoEvaginal fistula had for$ed in her reproductive organs hich forced stool to e#crete through the vagina. Another surgical operation as needed to re$ed! the da$age. Thus, in 1ctober 1923, she under ent another surger!. The spouses filed a co$plaint for da$ages alleging that the doctors are liable for negligence for leaving t o pieces of gau6e inside <atividad-s bod! and $alpractice for concealing their acts of negligence. 1n 5ebruar! 1=, 192=, pending the outco$e of the above case, she died and as dul! substituted b! her children. The trial court rendered a judg$ent holding the doctors liable for negligence and $alpractice. 1n appeal, the 0A dis$issed the case against Ar. 5uentes but affir$ed the judg$ent against Ar. A$pil and the hospital. 1n 'epte$ber =, 199=, the 0ourt of Appeals rendered its Aecision jointl! disposing of 0AE4R 0& <o. 320=2 and 0AE4R 'P <o. +2192, dis$issing the case against Ar. 5uentes and holding P', and Ar. A$pil solidaril! liable. 1nl! Ar. A$pil filed a $otion for reconsideration, but as denied.

52

P', alleged in its petition that the 0ourt of Appeals erred in holding that* %1( it is estopped fro$ raising the defense that Ar. A$pil is not its e$plo!ee> %2( it is solidaril! liable ith Ar. A$pil> and %+( it is not entitled to its counterclai$ against the Aganas. P', contended that Ar. A$pil is not its e$plo!ee, but a $ere consultant or independent contractor. As such, he alone should ans er for his negligence. The Aganas $aintained that the 0ourt of Appeals erred in finding that Ar. 5uentes is not guilt! of negligence or $edical $alpractice, invo;ing the doctrine of res ipsa loquitur. The! contended that the pieces of gau6e are prima facie proofs that the operating surgeons have been negligent. Ar. A$pil asserted that the 0ourt of Appeals erred in finding hi$ liable for negligence and $alpractice sans evidence that he left the t o pieces of gau6e in <atividad-s vagina. .e pointed to other probable cause, such as* %1( it as Ar. 5uentes ho used gau6es in perfor$ing the h!sterecto$!> %2( the attending nurses- failure to properl! count the gau6es used during surger!> and %+( the $edical intervention of the A$erican doctors ho e#a$ined <atividad in the Dnited 'tates of A$erica. The issues sub$itted to the court ere* first, hether the 0ourt of Appeals erred in holding Ar. A$pil liable for negligence and $alpractice> second, hether the 0ourt of Appeals erred in absolving Ar. 5uentes of an! liabilit!> and t)ird, hether P', $a! be held solidaril! liable for the negligence of Ar. A$pil. *eld$ %1( Hhether the 0ourt of Appeals erred in holding Ar. A$pil liable for negligence and $alpractice. Ar. A$pil argued that the 0ourt should not discount either of the follo ing possibilities* first, Ar. 5uentes left the gau6es in <atividad-s bod! after perfor$ing h!sterecto$!> second, the attending nurses erred in counting the gau6es> and t)ird, the A$erican doctors ere the ones ho placed the gau6es in <atividad-s bod!. The argu$ents are purel! conjectural and ithout basis. Records sho that he did not present an! evidence to prove that the A$erican doctors ere the ones ho put or left the gau6es in <atividad-s bod!. <either did he sub$it evidence to rebut the correctness of the record of operation, particularl! the nu$ber of gau6es used. As to the alleged negligence of Ar. 5uentes, Ar. A$pil e#a$ined his or; and found it in order. The glaring truth is that all the $ajor circu$stances, ta;en together, as specified b! the 0ourt of Appeals, directl! point to Ar. A$pil as the negligent part!, thus*

53

&irst, it is not disputed that the surgeons used gau6es as sponges to control the bleeding of the patient during the surgical operation. !econd, i$$ediatel! after the operation, the nurses ho assisted in the surger! noted in their support that the Jsponge count % as( lac;ing 2-> that such ano'aly ;as Bannounced to su%geon: and that a Bsea%ch ;as done but to no avail: p%o'pting %. A'pil to Bcontinue fo% closu%e: # # #. #)ird, after the operation, t o %2( gau6es ere e#tracted fro$ the sa$e spot of the bod! of 9rs. Agana here the surger! as perfor$ed. An operation re)uiring the placing of sponges in the incision is not co$plete until the sponges are properl! re$oved, and it is settled that the leaving of sponges or other foreign substances in the ound after the incision has been closed is at least prima facie negligence b! the operating surgeon. %Rule v. 0heese$an, +1? P. 2d 3?2 %198?(, citing Russel v. <e $an, 11= @an. 2=2 P. ?82> /ernsden v. 7ohnson, 1?3 @an. 2+0, 288 P. 2d 10++(. To put si$pl!, such act is considered so inconsistent ith 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. The '0 further ruled that it is not blind to the realit! that there are ti$es hen danger to a patient-s life precludes a surgeon fro$ further searching $issing sponges or foreign objects left in the bod!. /ut this does not leave hi$ free fro$ an! obligation. "ven if it has been sho n that a surgeon as re)uired b! the urgent necessities of the case to leave a sponge in his patient-s abdo$en, because of the dangers attendant upon dela!, still, it is his legal dut! to so infor$ his patient ithin a reasonable ti$e thereafter b! advising her of hat he had been co$pelled to do. This is in order that she $ight see; relief fro$ the effects of the foreign object left in her bod! as her condition $ight per$it. ,n !mit) v. .eagler, it as ruled, thus* FThe re$oval of all sponges used is part of a surgical operation, and hen a ph!sician or surgeon fails to re$ove a sponge he has placed in his patient-s bod! that should be re$oved as part of the operation, he thereb! leaves his operation unco$pleted and c%eates a ne; condition ;hich i'poses upon hi' the legal duty of calling the ne; condition to his patient:s attention) and endeavo%ing ;ith the 'eans he has at hand to 'ini'iCe and avoid unto;a%d %esults li@ely to ensue the%ef%o'. %18? 'o. +22 Pla. %19+3((.

54

Ar. A$pil did not infor$ <atividad about the $issing t o pieces of gau6e. Horse, he even $isled her that the pain she as e#periencing as the ordinar! conse)uence of her operation. .ad he been $ore candid, <atividad could have ta;en the i$$ediate and appropriate $edical re$ed! to re$ove the gau6es fro$ her bod!. Hhat as initiall! an act of negligence b! Ar. A$pil has ripened into a deliberate rongful act of deceiving his patient. To successfull! pursue this ;ind of case, a patient $ust onl! prove that a health care provider either failed to do so$ething hich a reasonabl! prudent health care provider ould have done, or that he did so$ething that a reasonabl! prudent provider ould not have done> and that failure or action caused injur! to the patient. %4arciaERueda v. Pascasio, 4.R. <o. 112131, 'epte$ber 8, 199?, 2?2 '0RA ?=9(. 'i$pl! put, the ele$ents are dut!, breach, injur! and pro#i$ate causation. Ar. A$pil, as the lead surgeon, had the dut! to re$ove all foreign objects, such as gau6es, fro$ <atividad-s bod! before closure of the incision. Hhen he failed to do so, it as his dut! to infor$ <atividad about it. Ar. A$pil breached both duties. 'uch breach caused injur! to <atividad, necessitating her further e#a$ination b! A$erican doctors and another surger!. That Ar. A$pil-s negligence is the pro#i$ate cause of <atividad-s injur! could be traced fro$ his act of closing the incision despite the infor$ation given b! the attending nurses that t o pieces of gau6e ere still $issing. That the! ere later on e#tracted fro$ <atividad-s vagina established the causal lin; bet een Ar. A$pil-s negligence and the injur!. And hat further aggravated such injur! as his deliberate conceal$ent of the $issing gau6es fro$ the ;no ledge of <atividad and her fa$il!. %2( Hhether the 0ourt of Appeals erred in absolving Ar. 5uentes of an! liabilit!. The Aganas assailed the dis$issal b! the trial court of the case against Ar. 5uentes on the ground that it is contrar! to the doctrine of res ipsa loquitur. According to the$, the fact that the t o pieces of gau6e ere left inside <atividad-s bod! is a prima facie evidence of Ar. 5uentes- negligence. *eld$ The '0 ruled other ise. :iterall!, res ipsa loquitur $eans Fthe thing spea;s for itselfG. ,t is the rule that the fact of the occurrence of an injur!, ta;en ith the surrounding circu$stances, $a! per$it an inference or raise a presu$ption of negligence, or $a;e out a plaintiff-s prima facie case, and present a )uestion of fact for defendant to $eet ith an e#planation. %Ra$os v. 0A, 4.R. <o. 123+83, Aece$ber 29, 1999, +21 '0RA 823(. 'tated differentl!, here the thing hich caused the injur!, ithout the fault of the injured, is under the e#clusive control of the defendant and the injur! is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of e#planation that the injur! arose fro$ the defendant-s ant of care, and the

55

burden of proof is shifted to hi$ to establish that he has observed due care and diligence. %Africa v. 0alte# %Phils.( ,nc., 12+ Phil. 220(. 5ro$ the foregoing state$ents of the rule, the re)uisites for the applicabilit! of the doctrine of res ipsa loquitur are* %1( the occurrence of an injur!> %2( the thing hich caused the injur! as under the control and $anage$ent of the defendant> %+( the occurrence as such that in the ordinar! course of things, ould not have happened if those ho had control or $anage$ent used proper care> and %3( the absence of e#planation b! the defendant. 1f the foregoing re)uisites, the $ost instru$ental is the Fcontrol and $anage$ent of the thing hich cause the injur!G. The ele$ent of Fcontrol and $anage$ent of the thing hich caused the injur!G are anting in the case. .ence, the doctrine of res ipsa loquitur ill not lie. Captain of the Ship Rule. Ar. A$pil as the lead surgeon during the operation of <atividad. .e re)uested the assistance of Ar. 5uentes onl! to perfor$ h!sterecto$! hen he found that the $alignanc! in her sig$oid area had spread to her left ovar!. Ar. 5uentes perfor$ed the surger! and thereafter reported and sho ed his or; to Ar. A$pil. The latter e#a$ined it and finding ever!thing to be in order, allo ed Ar. 5uentes to leave the operating roo$. Ar. A$pil then resu$ed operating on <atividad. .e as about to finish the procedure hen the attending nurses infor$ed hi$ that t o pieces of gau6e ere $issing. A Fdiligent searchG as conducted, but the $isplaced gau6es ere not found. Ar. A$pil then directed that the incision be closed. Auring this entire period, Ar. 5uentes as no longer in the operating roo$ and had, in fact, left the hospital. Dnder the F0aptain of the 'hipG rule, the operating surgeon is the person in co$plete charge of the surger! roo$ and all personnel connected ith the operation. Their dut! is to obe! his orders. %Rural "ducational Assn. v. /ush, 32 Tenn. App. +3, 292 '.H. 2d ?=1 %198=((. As stated before, Ar. A$pil as the lead surgeon. ,n other ords, he as the F0aptain of the 'hipG. That he discharged such role is evidenced fro$ his follo ing conduct* %1( calling Ar. 5uentes to perfor$ a h!sterecto$!> %2( e#a$ining the or; of Ar. 5uentes and finding it in order> %+( granting Ar. 5uentes- per$ission to leave> and %3( ordering the closure of the incision. ,t as this act of ordering the closure of the incision not ithstanding that t o pieces of gau6e re$ained unaccounted for, that caused injur! to <atividad-s bod!. 0learl!, the control and $anage$ent of the thing hich caused the injur! as in the hands of Ar. A$pil, not Ar. 5uentes. ,n this jurisdiction, res ipsa loquitur is not a rule of substantive la , hence, does not per se create or constitute an independent or separate ground of liabilit!, being a $ere evidentiar! rule. ,n other ords, $ere invocation and application of the doctrine does not dispense ith the re)uire$ent of proof of

56

negligence. .ere, the negligence A$pil and not b! Ar. 5uentes.

as proven to have been co$$itted b! Ar.

%+( Hhether P', is liable for the negligence of Ar. A$pil. The third issue necessitates a gli$pse at the historical develop$ent of hospitals and the resulting theories concerning their liabilit! for the negligence of ph!sicians. Dntil the $idEnineteenth centur!, hospitals ere generall! charitable institutions, providing $edical services to the lo est classes of societ!, ithout regard for a patient-s abilit! to pa!. Those ho could afford $edical treat$ent ere usuall! treated at ho$e b! their doctors. .o ever, the da!s of house calls and philanthropic health care are over. The $odern health care industr! continues to distance itself fro$ its charitable past and has e#perienced a significant conversion fro$ a notEforEprofit health care to forEprofit hospital business. 0onse)uentl!, significant changes in health la have acco$panied the businessErelated changes in the hospital industr!. 1ne i$portant legal change is an increase in hospital liabilit! for $edical $alpractice. 9an! courts no allo clai$s for hospital vicarious liabilit! under the theories of resondeat superior, apparent authorit!, ostensible authorit!, or agenc! b! estoppel. The statute governing liabilit! for negligent acts is Article 21?= of the 0ivil 0ode, hich reads* Article 21?=. Hhoever b! act or o$ission causes da$age to another, there being fault or negligence, is obliged to pa! for the da$age done. 'uch fault or negligence, if there is no preEe#isting contractual relation bet een the parties, is called a )uasiEdelict and is governed b! the provisions of this 0hapter. A derivated of this provision is Article 2120, the rule governing vicarious liabilit! under the doctrine of respondeat superior, thus* Article 2120. The obligation i$posed b! Article 21?= is de$andable not onl! for one-s o n acts or o$issions, but also for those of persons for ho$ one is responsible. ### ###

The o ners and $anagers of an establish$ent or enterprise are li;e ise responsible for da$ages caused b! their e$plo!ees in the service of the branches in hich the latter are e$plo!ed or on the occasion of their functions.

57

"$plo!ers shall be liable for the da$ages caused b! their e$plo!ees and household helpers acting ithin the scope of their assigned tas;s even though the for$er are not engaged in an! business or industr!. ### ###

The responsibilit! treated of in this article shall cease hen the persons herein $entioned prove that the! observed all the diligence of a good father of a fa$il! to prevent da$age. Professionals engaged b! an e$plo!er, such as ph!sicians, dentists, and phar$acists, are not Fe$plo!eesG under this article because the $anner in hich the! perfor$ their or; is not ithin the control of the latter %e$plo!er(. ,n other ords, professionals are considered personall! liable for the fault or negligence the! co$$it in the discharge of their duties, and their e$plo!er cannot be held liable for such fault or negligence. ,n the conte#t of the present case, Fa hospital cannot be held liable for the fault or negligence of a ph!sician or surgeon in the treat$ent or operation of patients. 'uch vie is grounded on the traditional notion that the professional status and the ver! nature of the ph!sician-s calling preclude hi$ fro$ being classed as an agent or e$plo!ee of a hospital, henever he acts in a professional capacit!. ,t has been said that $edical practice strictl! involves highl! developed and speciali6ed ;no ledge, such that ph!sicians are generall! free to e#ercise their o n s;ill and judg$ent in rendering $edical services sans interference. .ence, hen a doctor practices $edicine in a hospital setting, the hospital and its e$plo!ees are dee$ed to subserve hi$ in his $inistrations to the patient and his actions are of his o n responsibilit!. The case of !c)loendorff v. !ociet" of /e0 1or+ -ospital , 211 <.L. 128, 108 <.". 92, 82 :.R.A., <.'. 808 %1913(, as then considered an authorit! for this vie . The F!c)loendorff doctrineG regards a ph!sician, even if e$plo!ed b! a hospital, as an independent contractor because of the s;ill he e#ercises and the lac; of control e#erted over his or;. Dnder this doctrine, hospitals are e#e$pt fro$ the application of the respondeat superior principle for fault or negligence co$$itted b! ph!sicians in the discharge of their profession. .o ever, the efficac! of such doctrine has ea;ened ith the significant develop$ents in $edical care. 0ourts ca$e to reali6e that $odern hospitals are increasingl! ta;ing active role in suppl!ing and regulating $edical care to patients. <o longer ere a hospital-s functions li$ited to furnishing roo$, food, facilities for treat$ent and operation, and attendants for its patients. Thus, in ,ing v. #)unig, 2 <.L. 2d =8=, 1=+ <L' 2d +, 13+ %198?(, the <e Lor; 0ourt of Appeals deviated fro$ the !c)loendorff doctrine, noting that $odern hospitals actuall! do far $ore than provide facilities for treat$ent. Rather, the! regularl!

58

e$plo!, on a salaried basis, a large staff of ph!sicians, interns, nurses, ad$inistrative and $anual or;ers. The! charge patients for $edical care and treat$ent, even collecting for such services through legal action, if necessar!. The court then concluded that there is no reason to e#e$pt hospitals fro$ the universal rule of respondeat superior. ,n our shores, the nature of the relationship bet een the hospital and the ph!sicians is rendered inconse)uential in vie of our categorical pronounce$ent in Ramos v. Court of Appeals, that for purposes of apportioning responsibilit! in $edical negligence cases, an e$plo!erEe$plo!ee relationship in effect e#ists bet een hospitals and their attending and visiting ph!sicians. Thus, it as held* FHe no discuss the responsibilit! of the hospital in this particular incident. The uni)ue practice %a$ong private hospitals( of filling up specialist staff ith attending and visiting FconsultantsG, ho are allegedl! not hospital e$plo!ees, presents proble$s in apportioning responsibilit! for negligence in $edical $alpractice cases. .o ever, the difficult! is $ore apparent than real. ,n the first place, hospitals e#ercise significant control in the hiring and firing of consultants and in the conduct of their or; ithin the hospital pre$ises. Aoctors ho appl! for Jconsultantslots, visiting or attending, are re)uired to sub$it proof of co$pletion of residenc!, their educational )ualifications, generall!, evidence of accreditation b! the appropriate board %diplo$ate(, evidence of fello ship in $ost cases, and references. These re)uire$ents are carefull! scrutini6ed b! $e$bers of the hospital ad$inistration or b! a revie co$$ittee set up b! the hospital ho either accept or reject the application. After a ph!sician is accepted, either as a visiting or attending consultant, he is nor$all! re)uired to attend clinicoEpathological conferences, conduct bedside rounds for cler;s, interns and residents, $oderate grand rounds and patient audits and perfor$ other tas;s and responsibilities, for the privilege of being able to $aintain a clinic in the hospital, andKor for the privilege of ad$itting patients into the hospital. ,n addition to these, the ph!sician-s perfor$ance as a specialist is generall! evaluated b! a peer revie co$$ittee on the basis of $ortalit! and $orbidit! statistics, and feedbac; fro$ patients, nurses, interns and residents. A consultant re$iss in his duties, or a consultant ho regularl! falls short of the $ini$u$ standards acceptable to the hospital or its peer revie co$$ittee, is nor$all! politel! ter$inated. ,n other ords, private hospitals, hire, fire and e#ercise real control over their attending and visiting Jconsultant- staff. Hhile

59

Jconsultants- are not, technicall! e$plo!ees, # # # , the control e#ercised, the hiring, and the right to ter$inate consultants all fulfill the i$portant hall$ar;s of an e$plo!erEe$plo!ee relationship, ith the e#ception of the pa!$ent of ages. ,n assessing hether such a relationship in fact e#ists, the control test is deter$ining. Accordingl!, on the basis of the foregoing, e rule that for the purpose of allocating responsibilit! in $edical negligence cases, an e$plo!erEe$plo!ee relationship in effect e#ists bet een hospitals and their attending and visiting ph!sicians.G oct%ine of appa%ent autho%ity) etc. The Ramos pronounce$ent is not the onl! basis in sustaining P',-s liabilit!. ,ts liabilit! is also anchored upon the agenc! principle of apparent authorit! or agenc! b! estoppel and the doctrine of corporate negligence hich have gained acceptance in the deter$ination of a hospital-s liabilit! for negligent acts of health professionals. oct%ine of appa%ent autho%ity o% the holding out theo%y( o% doct%ine of ostensible agency o% agency by estoppel. This doctrine i$poses liabilit!, not as the result of the realit! of a contractual relationship, but rather because of the actions of a principal or an e$plo!er in so$eho $isleading the public into believing that the relationship or the authorit! e#ists. %,rving v. Aoctors .ospital of :a;e Horth, ,nc., 318 'o. 2d 88 %1922(, )uoting Arthur v. 't. Peters .ospital, 1=9 <.7. 8?8, 308 A 2d 33+ %19?9((. The concept is essentiall! one of estoppel. Dnder the rule, the principal is bound b! the acts of his agent ith the apparent authorit! hich he ;no ingl! per$its the agent to assu$e, or hich he holds to the agent out to the public as possessing. The )uestion in ever! case is hether the principal has b! his voluntar! act placed the agent ith business usages and the nature of the particular business, is justified in presu$ing that such agent has authorit! to perfor$ the particular act in )uestion. %.udson 0., :oan Assn., ,nc. v. .oro !t6, 11= <.7.:. =08, =02 A 3+? %'upp. 0t. 19+=(. The applicabilit! of the doctrine of apparent authorit! in the field of hospital liabilit! has been upheld in %rving v. Doctor -ospital of a+e 2ort) %nc .. ,n this case, it as said that there does not appear to be an! rational basis for e#cluding the concept of apparent authorit! fro$ the field of hospital liabilit!. ,n cases here it can be sho n that a hospital, b! its actions, has held out a particular ph!sician as its agent andKor e$plo!ee and that the patient has accepted treat$ent fro$ the ph!sician in the reasonable belief that it is being tendered in

60

behalf of the hospital, then the hospital negligence.

ill be liable for the ph!sician-s

The 0ivil 0ode recogni6es the concept of agenc! b! i$plication or estoppel. Article 12=9 of the 0ivil 0ode provides* FAgenc! $a! be e#press, or i$plied fro$ the acts of the principal, fro$ his silence or lac; of action, or his failure to repudiate the agenc!, ;no ing that another person is acting on his behalf ithout authorit!.G The defendant Professional 'ervices, ,nc. displa!ed in the lobb! of the 9edical 0it! .ospital the na$es and speciali6ations of the ph!sicians associated or accredited b! it. ,t is estopped fro$ passing all bla$e to the ph!sicians hose na$es it proudl! paraded in the public director! leading the public to believe that it vouched for their s;ill and co$petence. That is tanta$ount to holding out to the public that the hospital through its accredited ph!sicians, offers )ualit! health care services. /! accrediting the doctors and publicl! advertising their )ualifications, the hospital created the i$pression that the! ere agents, authori6ed to perfor$ $edical and surgical services for its patients. As e#pected, the patients accepted the services on the reasonable belief that such ere being rendered b! the hospital or its e$plo!ees, agents or servants. As aptl! said b! the trial court* F# # # regardless of the education and status in life of the patient, he ought not be burdened ith the defense of absence of e$plo!erE e$plo!ee relationship bet een the hospital and the independent ph!sician hose na$e and co$petence are certainl! certified to the general public b! the hospital-s act of listing hi$ and his specialt! in its lobb!. The high costs of toda!-s $edical and health care should not at least e#act on the hospital greater, if not broader, legal responsibilit! for the conduct of treat$ent and surger! ithin its facilit! b! its accredited ph!sician or surgeon, regardless of hether he is independent or e$plo!ed.G The isdo$ of such reasoning is eas! to discern. 0orporate entities li;e hospitals are capable of acting onl! through other individuals li;e ph!sicians. ,f these accredited ph!sicians do their job ell, the hospital succeeds in its $ission of offering )ualit! $edical services and thus, profits financiall!. :ogicall!, here negligence $ars the )ualit! of its services, the hospital should not be allo ed to escape liabilit! for the acts of its ostensible agents. %Professional 'ervices, ,nc. v. Agana, 4.R. <o. 12=29?> Agana v. 7uan 5uentes, 4.R. <o. 12=3=?> A$pil v. Agana, 4.R. <o. 12?890, 7anuar! +1, 200?(.

61

oct%ine of co%po%ate negligence o% co%po%ate %esponsibility. The co$plaint alleged that P', as o ner, operator and $anager of 9edical 0it! .ospital did not perfor$ the necessar! supervision or e#ercise diligent efforts in the supervision of Ar. A$pil and 5uentes and its nursing staff, resident doctors, $edical interns ho assisted the doctors in the perfor$ance of their duties. .ence, pre$ised on the doctrine of corporate negligence, P', is directl! liable for such breach of dut!. ,s the contention correctI Hh!I *eld$ Les. ,t as dul! established that P', operates the 9edical 0it! .ospital for the purpose and under the concept of providing co$prehensive $edical services to the public. Accordingl!, it has the dut! to e#ercise reasonable care to protect fro$ har$ all patients ad$itted into its facilit! for $edical treat$ent. Dnfortunatel!, P', failed to perfor$ such dut!. The findings of the trial court are convincing, thus* # # # # 3SI:s liability is t%aceable to its failu%e to conduct an investigation of the 'atte% %epo%ted in the nota bene of the count nu%se. Such failu%e established 3SI:s pa%t in the da%@ conspi%acy of silence and conceal'ent about the gauCes. "thical considerations, if not also legal, dictated the holding of an i$$ediate in)uir! into the events, if not for the benefit of the patient to ho$ the dut! is pri$aril! o ed, then in the interest of arriving at the truth. The 0ourt cannot accept that the $edical and the healing professions, through their $e$bers li;e defendant surgeons, and their institutions li;e P',-s hospital facilit!, can callousl! turn their bac;s on and disregard even a $ere probabilit! of $ista;e or negligence b! refusing or failing to investigate a report of such seriousness as the one in <atividad-s case. ,t is orth! to note that Ar. A$pil and Ar. 5uentes operated on <atividad ith the assistance of the 9edical 0it! .ospital-s staff, co$posed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that P',, as the operator of the hospital, has actual or constructive ;no ledge of the procedures carried out, particularl! the report of the attending nurses that the t o pieces of gau6e ere $issing. ,n &ridena v. Evans,12? Ari6. 81=, =22 P. 2d 3=+ %1920(, it as held that a corporation is bound b! the ;no ledge ac)uired b! or notice given to its agents or officers ithin the scope of their authorit! and in reference to a $atter to hich their authorit! e#tends. This $eans that the ;no ledge of an! of the staff of 9edical 0it! .ospital constitutes ;no ledge of P',. The failure of P',, despite the attending nurses- report, to investigate and infor$ the patient regarding the $issing gau6es a$ounts to callous negligence. <ot onl! did P', breach its duties to oversee or supervise all persons ho

62

practice $edicine ithin its alls, it also failed to ta;e an active step in fi#ing the negligence co$$itted. This renders P',, not onl! vicariousl! liable for the negligence of Ar. A$pil under Article 2120 of the 0ivil 0ode, but also directl! liable for its o n negligence under Article 21?=. ,n &ridena, the 'upre$e 0ourt of Ari6ona held* # # # ,n recent !ears, ho ever, the dut! of care o ed to the patient b! the hospital has e#panded. The e$erging trend is to hold the hospital responsible here the hospital has failed to $onitor and revie $edical services being provided ithin its alls. 'ee 3a)n -ospital (alpractice $revention, 2? Ae Paul. Rev. 2+ %19??(. A$ong the cases indicative of the Je$erging trend- is $urcell v. .imbelman, 12 Ari6. App. ?8,800 P. 2d ++8 %19?2(. ,n $urcell, the hospital argued that it could not be held liable for the $alpractice of a $edical practitioner because he as an independent contractor ithin the hospital. The 0ourt of Appeals pointed out that the hospital had created a professional staff hose co$petence and perfor$ance as to be $onitored and revie ed b! the governing bod! of the hospital, and the court held that a hospital ould be negligent here it had ;no ledge or reason to believe that a doctor using the facilities as e$plo!ing a $ethod of treat$ent or care hich fell belo the recogni6ed standard of care. 'ubse)uent to the $urcell decision, the Ari6ona 0ourt of Appeals held that a hospital has certain inherent responsibilities regarding the )ualit! of $edical care furnished to patients ithin its alls and it $ust $eet the standards of responsibilit! co$$ensurate ith this underta;ing. ,eec+ v. #ucson 'eneral -ospital, 12 Ari6. App. 1=8, 800 P. 2d 118+ %19?2(. This court has confir$ed the rulings of the 0ourt of Appeals that a hospital has the dut! of supervising the co$petence of the doctors on its staff. ###. ### ###

,n the a$ended co$plaint, the plaintiffs did plead that the operation as perfor$ed at the hospital ith its ;no ledge, aid, and assistance, and that the negligence of the defendants as the pro#i$ate cause of the patient-s injuries. He find that such general allegations of negligence, along ith the evidence produced at the trial of this case, are sufficient to support the hospital-s liabilit! based on the theor! of negligent supervision.G Anent the corollar! issue of hether P', is solidaril! liable ith Ar. A$pil for da$ages, let it be e$phasi6ed that P',, apart fro$ a general denial of its responsibilit!, failed to adduce evidence sho ing that it e#ercised the diligence of

63

a good father of a fa$il! in the accreditation and supervision of the latter. ,n neglecting to offer such proof, P', failed to discharge its burden under the last paragraph of Article 2120 cited earlier, and, therefore, $ust be adjudged solidaril! liable ith Ar. A$pil. 9oreover, as e have discussed, P', is also directl! liable to the Aganas. 1ne final ord. 1nce a ph!sician underta;es the treat$ent and care of a patient, the la i$poses on hi$ certain obligations. ,n order to escape liabilit!, he $ust possess that reasonable degree of learning, s;ill and e#perience re)uired b! his profession. At the sa$e ti$e, he $ust appl! reasonable care and diligence in the e#ercise of his s;ill and the application of his ;no ledge, and e#ert his best judg$ent. *isto%y of the doct%ine of co%po%ate negligence. Recent !ears have seen the doctrine of corporate negligence as the judicial ans er to the proble$ of allocating hospital-s liabilit! for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authorit!. ,ts for$ulation proceeds fro$ the judiciar!-s ac;no ledg$ent that in these $odern ti$es, the dut! of providing )ualit! $edical service is no longer the sole prerogative and responsibilit! of the ph!sician. The $odern hospitals have changed structure. .ospitals no tend to organi6e a highl!Eprofessional $edical staff hose co$petence and perfor$ance need to be $onitored b! the hospitals co$$ensurate ith their inherent responsibilit! to provide )ualit! $edical care. %Purcell v. Oi$ber$an, 12 Ari6. App. ?8, 800 P 2d ++8 %19?2((. The doctrine has its genesis in Darling v. C)arleston Communit" -ospital , ++ ,ll. 2d +2=, 211 <.". 2d 28+(. There, the 'upre$e 0ourt of ,llinois held that Fthe jur! could have found a hospital negligent, inter alia, in failing to have a sufficient nu$ber of trained nurses attending the patient> failing to re)uire a consultation ith or e#a$ination b! $e$bers of the hospital staff> and failing to revie the treat$ent rendered to the patient.G 1n the basis of Darling, other jurisdictions held that a hospital-s corporate negligence e#tends to per$itting a ph!sician ;no n to be inco$petent to practice at the hospital. %0orleto v. .ospital, 1+2 <.7. 'uper. +02, +80 A. 2d 8+3 %'uper. 0t. :a Aiv. 19?8(> Purcell v. Oi$bel$an, 12 Ari6. App. ?8,800 P. 2d ++8 %19?2(> .ospital Authorit! v. 7oiner, 229 4a. 130, 129 '.". 2d 312 %19?2((. Hith the passage of ti$e, $ore duties ere e#pected fro$ hospitals, a$ong the$* %1( the use of reasonable care in the $aintenance of safe and ade)uate facilities and e)uip$ent> %2( the selection and retention of co$petent ph!sicians> %+( the overseeing or supervision of all persons ho practice $edicine ithin its alls> and %3( the for$ulation, adoption and enforce$ent of ade)uate rules and policies that ensure )ualit! care for its patients. %Helsh v. /ulger, 832 Pa. 803, =92 A. 2d 821 %199?((. Thus, in #ucson (edical Center, %nc. v. (isevic) , 118 Ari6. +3, 838 P 2d

64

982 %19?=(, it as held that a hospital, follo ing the doctrine of corporate responsibilit!, has the dut! to see that it $eets the standards of responsibilities for the care of patients. 'uch dut! includes the proper supervision of the $e$bers of its $edical staff. And in ,ost v. Rile", 2=2 '.". 2d +91, +00 <0 193, 2=9 '.". 2d =21 %1920(, the court concluded that a patient ho enters a hospital does so ith the reasonable e#pectation that it ill atte$pt to cure hi$. The hospital accordingl! has the dut! to $a;e a reasonable effort to $onitor and oversee the treat$ent prescribed and ad$inistered b! the ph!sicians practicing in its pre$ises. Res Ipsa Loquitur( 'edical negligence cases. 1nce again, the '0 in Dr. (ilagros Cantre v. !ps. 'o, 4.R. <o. 1=0229, April 2?, 200?, had the occasion to sa! that the .ippocratic 1ath $andates ph!sicians to give pri$ordial consideration to the ellEbeing of their patients. ,f a doctor fails to live up to this precept, he is accountable for his acts. This not ithstanding, courts face a uni)ue restraint in adjudicating $edical negligence cases because ph!sicians are not guarantors of case and, the! never set out to intentionall! cause injur! to their patients. .o ever, intent is i$$aterial in negligence cases because here negligence e#ists and is proven, it auto$aticall! gives the injured a right to reparation for the da$age caused. %Ra$os v. 0A, 4.R. <o. 123+83, Aece$ber 29, 1999, +21 '0RA 823(. ,n cases involving $edical negligence, the doctrine of res ipsa loquitur allo s the $ere e#istence of an injur! to justif! a presu$ption of negligence on the part of the person ho controls the instru$ent causing the injur!, provided that the follo ing re)uisites concur* 1. The accident is of a ;ind so$eone-s negligence> hich ordinaril! does not occur in the absence of ithin the e#clusive control of the ould $a;e the plaintiff responsible

2. ,t is caused b! an instru$entalit! defendant or defendants> and +. the possibilit! of contributing conduct is eli$inated.

,n this case, a o$an gave birth. Aue to the operation, there as profuse bleeding inside her o$b, hence, the doctors perfor$ed various $edical procedures. .er blood pressure as $onitored ith the use of a sph!g$ona$$eter. ,t as observed later on that there as a fresh gaping ound in the inner portion of her left ar$. The </,E9edico :egal found out that it appeared to be a burn resulting in the placing of a droplight near her s;in. Aespite surgical operation, there as an unsightl! $ar; in her left ar$ and the pain re$ained and her $ove$ents ere restricted. A co$plaint as filed pra!ing for da$ages here the RT0 rendered judg$ent holding the doctor liable. The

65

0A affir$ed, but $odified the judg$ent. 1n appeal to the '0 it as contended that the ound as not caused b! the droplight but b! the constant ta;ing of her blood pressure. The '0 said that, that is i$$aterial. The $edical practice is to deflate the blood pressure cuff i$$ediatel! after each use. 1ther ise, the inflated band can cause injur! to the patient si$ilar to hat could have happened in this case. Thus, if the ound as caused b! the blood pressure cuff, then the ta;ing of the blood pressure $ust have been done so negligentl! as to have inflicted a gaping ound on her ar$, for hich the defendant cannot escape liabilit! under the Fcaptain of the shipG doctrine. The argu$ent that the failed plastic surger! as not intended as a cos$etic procedure, but rather as a $easure to prevent co$plication does not help her case. ,t does not negate negligence on her part. /ased on the foregoing, the presu$ption that defendant as negligent in the e#ercise of her profession stands unrebutted. ,n this connection, the 0ivil 0ode provides* ART. 21?=. Hhoever b! act or o$ission causes da$age to another, there being fault or negligence, is obliged to pa! for the da$age doneP ART. 221?. 9oral da$ages include ph!sical suffering, $ental anguish, fright, serious an#iet!, bes$irched reputation, ounded feelings, $oral shoc;, social hu$iliation, and si$ilar injur!. Though incapable of pecuniar! co$putation, $oral da$ages $a! be recovered if the! are the pro#i$ate result of the defendant-s rongful act or o$ission. 0learl!, under the la , the defendant is obliged to pa! plaintiff for $oral da$ages suffered b! the latter as a pro#i$ate result of her negligence. 1n the presu$ption of negligence under the principle of res ipsa loquitur, the '0 in appl!ing the re)uire$ents of the rule said* As to the first re)uire$ent, the gaping ound the plaintiff-s certainl! not an ordinar! occurrence in the act of delivering a bab!, far re$oved as the ar$ is fro$ the organs involved in the process of giving birth. 'uch injur! could not have happened unless negligence had set in so$e here. 'econd, hether the injur! as caused b! the droplight or b! the blood pressure cuff is of no $o$ent. /oth instru$ents are dee$ed ithin the e#clusive control of the ph!sician in charge under the Fcaptain of the shipG doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of

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his assistants during the ti$e hen those assistants are under the surgeon-s control. %/lac; :a Aictionar!, 192 %8 th ed., 19?9(. ,n this particular case, it can be logicall! inferred that defendant, the senior consultant in charge during the deliver! of the bab!, e#ercised control over the assistants assigned to both the use of the droplight and the ta;ing of the plaintiff-s blood pressure. .ence, the use of the droplight and the blood pressure cuff is also ithin her e#clusive control. Third, the gaping ound on the plaintiff-s left ar$, b! its ver! nature and considering her condition, could onl! be caused b! so$ething e#ternal to her and outside her control as she as unconscious hile in h!povole$ic shoc;. .ence, plaintiff could not, b! an! stretch of the i$agination, have contributed to her o n injur!. The defense that the ound as caused not b! the droplight but b! the constant ta;ing of her blood pressure, even if the latter as necessar! given her condition, does not absolve her fro$ liabilit!. EEEE ,n Jose Roque, Jr. v. Jaime #orres, et al., 4.R. <o. 18?=+2, Aece$ber =, 200=, a co$plaint for da$ages as filed against the respondent on account of the acts of the securit! guard e$plo!ed b! hi$, b! shooting the plaintiff resulting in death. Respondent e$plo!ed securit! guards to prevent the plaintiff fro$ entering a parcel of land despite ;no ledge that he did not o n the sa$e and that there as a title under the na$e of the plaintiff-s son. Hhen the latter insisted in entering the land, the guards shoot hi$. .e filed a co$plaint but there as substitution b! his heirs because he subse)uentl! died. ,n holding the respondent liable, the '0 *eld$ Article 21?= of the 0ivil 0ode states that F hoever b! act or o$ission causes da$age to another, there being fault or negligence, is obliged to pa! for the da$age done.G ,n the case at bar, respondent cannot feign ignorance of the fact that at the ti$e of the shooting incident, the titles to the disputed propert! ere alread! registered in the na$e of petitioner-s son, the cancellation for title case filed b! respondent having been dis$issed. ,n fact, during trial, the offer for stipulation of petitioner-s counsel that at the ti$e of shooting incident, there is a valid and e#isting title in the na$e of petitioner-s son hich as never cancelled b! the court, as accepted b! the respondent. Therefore, b! hiring the securit! guards to prevent entr!, possibl! even b! the registered o ner, to the subject propert!, titles to hich he full! ;ne he did not possess, respondent blatantl! acted in bad faith. .is un arranted act of posting securit! guards ithin the propert!, hich he clearl! ;ne is registered in the na$e of another, undul! placed petitioner at har$ and deprived hi$ of his right to full! e#ercise his privileges and duties as ad$inistrator of said propert!. /! his grossl! fault! acts, paved the a! to the infliction of injuries b! the securit! guards on petitioner.

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5urther$ore, respondent-s palpable displa! of bad faith in clai$ing a superior right to the propert! over petitioner-s son entitles petitioner to da$ages resulting therefro$. ,n order that a plaintiff $a! $aintain an action for the injuries hich he sustained, he $ust establish that such injuries resulted fro$ a breach of dut! hich the defendant o ed to the plaintiff a concurrence of injur! to the plaintiff and legal responsibilit! b! the person causing it. ,n other ords, in order that the la ill give redress for an act causing da$age, the act $ust be not onl! hurtful, but rongful. Respondent violated the principle e$bodied in Article 19 of the 0ivil 0ode hich $andates that Fever! person $ust, in the e#ercise of his rights and in the perfor$ance of his duties, act ith justice, give ever!one his due, and observe honest! and good faith.G Hhen a right is e#ercise in a $anner hich discards these nor$s resulting in da$age to another, a legal rong is co$$itted for hich the actor can be held accountable. ,f $ere fault or negligence in one-s act can $a;e hi$ liable for da$ages for injur! caused thereb!, ith $ore reason should abuse or bad faith $a;e hi$ liable. %Ae 4u6$an v. <:R0, 4.R. <o. 9028=, 7ul! 2+, 1992, 211 '0RA ?2+(. The! are a arded onl! to enable the injured parties to obtain $eans, diversions or a$use$ents that ill serve to alleviate the $oral sufferings the injured parties have undergone b! reason of defendant-s culpable action. ,n other ords, the a ard of $oral da$ages is ai$ed at a restoration ithin the li$its of possible, of the spiritual status quo ante> and therefore it $ust be proportionate to the suffering inflicted. %Ro)ue, 7r. v. Torre, et al., 4.R. 18?=+2, Aece$ber =, 200=(. As to e#e$plar! da$ages, Article 2229 of the 0ivil 0ode provides that such da$ages $a! be i$posed b! a! of e#a$ple or correction for the public good, in addition to the $oral, te$perate, li)uidated or co$pensator! da$ages. Hhile e#e$plar! da$ages cannot be recovered as a $atter of right, the! need not be proved, although plaintiff $ust sho that he is entitled to $oral, te$perate or co$pensator! da$ages before the court $a! consider the )uestion of hether or not e#e$plar! da$ages should be a arded. ,n the case at bar, having deter$ined that petitioner is entitled to the a ard of actual and $oral da$ages as a result of the anton act of respondent in stationing securit! guards in the propert!, the title of hich is under the na$e of plaintiff-s son, said act ulti$atel! resulting in the paral!sis and blindness of plaintiff, the a ard of e#e$plar! da$ages to be proper b! a! of correction for the public good of respondent-s flagrant displa! of bad faith. %Ro)ue, 7r. v. Torres, et al., 4.R. <o. 18?=+2, Aece$ber =, 200=> 4arcia, 7r. v. 'alvador, et al., 4.R. <o. 1=2812, 9arch 20, 200?(. Liability of the e'ploye% fo% the acts o% o'issions of the e'ployee.

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1nce again, the '0 in (ercur" Drug, et al. v. !ps. -uang, et al., 4.R. <o. 1?2122, 7une 22, 200?, %Puno, 7( had the occasion to rule on the liabilit! of the e$plo!er for the negligent act of the e$plo!ee hile in the perfor$ance of his duties and functions. The liabilit! of the e$plo!er under Art. 2120 of the 0ivil 0ode is direct or i$$ediate. ,t is not conditioned on a prior recourse against the negligent e$plo!ee, or a prior sho ing of insolvenc! of such e$plo!ee. ,t is also joint and solidar! ith the e$plo!ee. %Art. 2193, <00(. To be relieved of liabilit!, the e$plo!er should sho that it e#ercised the diligence of a good father of a fa$il!, both in the selection of the e$plo!ee and in the supervision of the perfor$ance of his duties. Thus, in the selection of its prospective e$plo!ees, the e$plo!er is re)uired to e#a$ine the$ as to their )ualifications, e#perience, and service records. %"stacion v. /ernardo, 4.R. <o. 133?2+, 5ebruar! 2?, 200=, 32+ '0RA 222> 0a$po v. 0a$arote, 100 Phil. 389 %108=((. Hith respect to the supervision of its e$plo!ees, the e$plo!er should for$ulate standard operating procedures, $onitor their i$ple$entation, and i$pose disciplinar! $easures for their breach. To establish co$pliance ith these re)uire$ents, e$plo!ers $ust sub$it concrete proof, including docu$entar! evidence. %&ictor! :iner, ,nc. v. .eirs of Andres 9alecdan, 4.R. <o. 1832?2, Aece$ber 2?, 2002, +93 '0RA 820(. ,n this case, the e$plo!er, 9ercur! Arug presented testi$onial evidence on its hiring procedure. According to 9rs. 9erlie 0aa$ic, the Recruit$ent and Training 9anager of petitioner 9ercur! Arug, applicants are re)uired to ta;e theoretical and actual driving tests, and ps!chological e#a$ination. ,n the case of e$plo!ee, ho ever, 9rs. 0aa$ic ad$itted that he too; the driving tests and ps!chological e#a$ination hen he applied for the position of Aeliver! 9an, but not hen he applied for the position of Truc; 9an. 9rs. 0aa$ic also ad$itted that e$plo!ee used a 4alant hich is a light vehicle, instead of a truc; during the driving tests. 5urther, no tests ere conducted on the $otor s;ills develop$ent, perceptual speed, visual attention, depth visuali6ation, e!e and hand coordination and steadiness of the e$plo!ee. <o </, and police clearances ere also presented. :astl!, he attended onl! three driving se$inars. ,n effect, the onl! se$inar he attended before the accident hich occurred in 199= as held t elve !ears ago in 1923. 5urther$ore, in this case, the e$plo!er did bac;Eup driver for long trips. At the ti$e of the accident, the e$plo!ee has been out on the road for $ore than thirteen hours, ithout an! alternate. The itness ad$itted that she did not ;no of an! co$pan! polic! re)uiring bac;Eup drivers for long trips. The e$plo!er li;e ise failed to sho that it e#ercised due diligence on the supervision and discipline over its e$plo!ees. ,n fact, on the da! of the accident,

69

the e$plo!ee as driving ithout a license. .e as holding a T&R for rec;less driving. .e testified that he reported the incident to his superior, but nothing as done about it. .e as not suspended or repri$anded. <o disciplinar! action hatsoever as ta;en against hi$. Thus, the e$plo!er failed to discharge its burden of proving that it e#ercised due diligence in the selection and supervision of its e$plo!ee. a'age %ecove%able. The trial court a arded the follo ing a$ounts* 1. T o 9illion <ine .undred %P2,9?+,000.00( actual da$ages> 2. As co$pensator! da$ages* a. T ent!EThree 9illion 5our .undred 'i#t! 1ne Thousand, and 'i#t!ET o Pesos %P2+,3=1,0=2.00( for life care cost of 'tephen> b. Ten 9illion Pesos %P10,000,000.00( as and for lost or i$paired earning capacit! of 'tephen> +. 5our 9illion Pesos %P3,000,000.00( as $oral da$ages> 3. T o 9illion Pesos %P2,000,000.00( as e#e$plar! da$ages> and 8. 1ne 9illion Pesos %P1,000,000.00( as attorne!-s fees and litigation e#pense. The 0ourt of Appeals affir$ed the decision of the trial court but reduced the a ard of $oral da$ages to P1,000,000.00. Hith regard to actual da$ages, Art. 2199 of the 0ivil 0ode provides that F"#cept as provided b! la or b! stipulation one is entitled to an ade)uate co$pensation onl! for such pecuniar! loss suffered b! hi$ as he has dul! proved # # #.G ,n this case, the actual da$ages clai$ed ere supported b! receipts. The a$ount of P2,9?+,000.00 represented cost of hospital e#penses, $edicines, $edical services and supplies, and nursing care services provided on the victi$ of the vehicular accident. Petitioners are also liable for all da$ages hich are the natural and probable conse)uences of the act or o$ission co$plained of. %Art. 2202, <00(. The doctors ho attended to the victi$ are one in their prognosis that his chances of al;ing again and perfor$ing basic bod! functions are nil. 5or the rest of his life, he ill need continuous rehabilitation and therap! to prevent further co$plications such as pneu$onia, bladder and rectu$ infection, renal 'event!EThree Thousand Pesos

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failure, sepsis and severe bed sores, osteoporosis and fractures, and other spinal cord injur!Erelated conditions. .e ill be co$pletel! dependent on the care and support of his fa$il!, hence, the a ard of P2+,3=1,0=2.00 for the life care cost of the victi$ as uphold based on his average $onthl! e#pense and the actuarial co$putation of the re$aining !ears that he is e#pected to live> and the conservative a$ount of P10,000,000.00, for the loss or i$pair$ent of his earning capacit!, %Art. 2208, <00(, considering his age, probable life e#pectanc!, the state of his health, and his $ental and ph!sical condition before the accident. .e as onl! seventeen !ears old, nearl! si# feet tall and eighed 1?8 pounds. .e as in fourth !ear high school, and a $e$ber of the school varsit! bas;etball tea$. .e as also class president and editorEinEchief of the school annual. .e had sho n ver! good leadership )ualities. .e as loo;ing for ard to his college life, having just passed the entrance e#a$inations of the Dniversit! of the Philippines, Ae :a 'alle Dniversit!, and the Dniversit! of Asia and the Pacific. The Dniversit! of 'to. To$as even offered hi$ a chance to obtain an athletic scholarship, but the accident prevented hi$ fro$ attending the bas;etball tr!E outs. Hithout doubt, he as an e#ceptional student. .e e#celled both in his acade$ics and e#tracurricular underta;ings. .e is intelligent and $otivated, a goEgetter. .ad the accident not happened, he had a ros! future ahead of hi$. .e anted to e$bar; on a ban;ing career, get $arried and raise children. Ta;ing into account his outstanding abilities, he ould have enjo!ed a successful professional career in ban;ing. /ut, no , it is highl! unli;el! for so$eone li;e respondent to ever secure a job in a ban;. !o%al da'ages. The a ard of $oral and e#e$plar! da$ages and attorne!-s fees li;e ise upheld* FThe a ard of $oral da$ages is ai$ed at a restoration, ithin the li$its of the possible, of the spiritual status quo ante. %Ro)ue v. To$as, 4.R. <o. 18?=+2, Aece$ber =, 200=(. 9oral da$ages are designed to co$pensate and alleviate in so$e a! the ph!sical suffering, $ental anguish, fright, serious an#iet!, bes$irched reputation, ounded feelings, $oral shoc;, social hu$iliation, and si$ilar injur! unjustl! caused a person. Although incapable of pecuniar! co$putation, the! $ust be proportionate to the suffering inflicted. %P<R v. /runt!, 4.R. <o. 1=9291, <ove$ber 2, 200=(. The a$ount of the a ard bears no relation hatsoever ith the ealth or $eans of the offender. E2e'pla%y da'ages. 1n the $atter of e#e$plar! da$ages, Art. 22+1 of the 0ivil 0ode provides that in cases of )uasiEdelicts, e#e$plar! da$ages $a! be granted if the defendant acted ith gross negligence. At the ti$e of the accident, the e$plo!ee as

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as driving ithout a license because he as previousl! tic;eted for rec;less driving. The evidence also sho ed that he failed to step on his bra;es i$$ediatel! after the i$pact. .ad he done so, the injuries hich the victi$ sustained could have been greatl! reduced. Hanton acts such as that co$$itted b! the e$plo!er need be suppressed> and e$plo!ers li;e 9ercur! Arug should be $ore circu$spect in the observance of due diligence in the selection and supervision of their e$plo!ees. The a ard of e#e$plar! da$ages is therefore justified. Fhen so'eone 'ay be liable fo% 'alicious p%osecution. ,n Antonio Diaz v. Davao ig)t 4 $o0er Corp., et al., 4.R. <o. 1=0989, April 3, 200? %0allejo, 7(, petitioner unilaterall! installed a $eter to replace another one. There as a notice of disconnection and eventuall!, the connection as cut. There as a petition for $andator! injunction to restore connection. ,t as ho ever settled b! a! of a co$pro$ise agree$ent here the parties agreed to reduce the respondent-s clai$ and to aive the counterclai$ and to install the electric service. There as no agree$ent to bar the institution of other action. Thereafter, respondent filed cri$inal cases for theft against the petitioner, hence, a co$plaint for da$ages for abuse of right under Article 19, <00 as filed. Petitioner insisted that the co$pro$ise agree$ent as ell as the decision based on it alread! settled the controversies bet een the$> !et, A:P0 instituted the theft case against petitioner, and orse, instituted another action for violation of P.A. 301, as a$ended b! /.P. 2?=. Thus, the onl! conclusion that can be inferred fro$ the acts of A:P0 is that the! ere designed to harass, e$barrass, prejudice, and ruin hi$. .e further averred that the co$pro$ise agree$ent in civil case co$pletel! erased litigious $atters that could necessaril! arise out of either "lectric 9eter <o. 23?+? or 2==?+809. 9oreover, he asserted that the evidence he presented is sufficient to prove the da$ages he suffered b! reason of the $alicious institution of the cri$inal cases. ,n brushing aside his contentions, the '0 *eld$ Article 2022 of the 0ivil 0ode defines a co$pro$ise as a contract hereb! the parties, b! $a;ing reciprocal concessions, avoid litigation or put an end to one alread! co$$enced. The purpose of co$pro$ise is to settle the clai$s of the parties and bar all future disputes and controversies. .o ever, cri$inal liabilit! is not affected b! co$pro$ise for it is a public offense hich $ust be prosecuted and punished b! the 4overn$ent on its o n $otion, though co$plete reparation should have been $ade of the da$ages suffered b! the offended part!. A cri$inal case is co$$itted against the People, and the offended part! $a! not aive or e#tinguish the cri$inal liabilit! that the la i$poses for the co$$ission of the offense. 9oreover, a co$pro$ise is not one

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of the grounds prescribed b! the Revised Penal 0ode for the e#tinction of cri$inal liabilit!. Petitioner is not entitled to da$ages under Articles 19, 20 and 21, and Article 221? and 2219%2( of the <e 0ivil 0ode. The ele$ents of abuse of rights are the follo ing* %a( the e#istence of a legal right or dut!> %b( hich is e#ercise in bad faith> and %c( for the sole intent of prejudicing or injuring another. %.ong;ong and 'hanghai /an;ing 0orp., :i$ited v. 0atalan, 4.R. <o. 189891, 1ctober 12, 2003, 330 '0RA 392, 811E812> 'aber v. 0ourt of Appeals, 4.R. <o. 1+2921, August +1, 2003, 3+? '0RA 289(. Thus, $alice or bad faith is at the core of the above provisions. 4ood faith refers to the state of the $ind hich is $anifested b! the acts of the individual concerned. ,n consists of the intention to abstain fro$ ta;ing an unconscionable and unscrupulous advantage of another. 4ood faith is presu$ed and he ho alleges bad faith has the dut! to prove the sa$e. /ad faith, on the other hand, does not si$pl! connote bad judg$ent to si$ple negligence, dishonest purpose or so$e $oral oblo)u! and conscious doing of a rong, a breach of ;no n dut! due to so$e $otives or interest or illE ill that parta;es of the nature of fraud. 9alice connotes illE ill or spite and spea;s not in response to dut!. ,t i$plies an intention to do ulterior and unjustifiable har$. 9alice is bad faith or bad $otive. There as no $alice or bad faith. Petitioner hi$self alleged in his co$plaint that he unilaterall! installed a $eter after it as re$oved b! A:P0. <o less than the 0ourt, ad$onished petitioner and re$inded hi$ that connections of electrical service and installations of electric $eters should al a!s be upon $utual contract of the parties, and that pa!$ents for electrical consu$ption should also be $ade pro$ptl! henever due. /ased on these established facts, petitioner has not sho n that the acts of respondent ere done ith the sole intent of prejudicing and injuring hi$. Petitioner $a! have suffered da$ages as a result of the filing of the co$plaints. .o ever, there is a $aterial distinction bet een da$ages and injur!. ,njur! is the illegal invasion of a legal right> da$age is the loss, hurt or har$ hich results fro$ the injur!> and da$ages are the reco$pense or co$pensation a arded for the da$age suffered. Thus, there can be da$age ithout injur! in those instances in hich the loss or har$ as not the result of a violation of a legal dut!. ,n such cases, the conse)uences $ust be borne b! the injured person alone> the la affords no re$ed! for da$ages resulting fro$ an act hich does not a$ount to a legal injur! or rong. These situations are often called damnum absque injuria. %5ar "ast /an; and Trust 0o$pan! v. Pacilan, 7r., 4.R. <o. 18?+13, 7ul! 29, 2008, 3=8 '0RA +?2, +23E+28(. Hhatever da$ages petitioner $a! have suffered ould have to be borne b! hi$ alone since it as his acts hich led to the filing of the co$plaints against hi$. Concept of 'alicious p%osecution.

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1n the other hand, $alicious prosecution has been defined as an action for da$ages brought b! or against ho a cri$inal prosecution, civil suit or other legal proceeding has been instituted $aliciousl! and ithout probable cause, after the ter$ination of such prosecution, suit, or other proceeding in favor of the defendant therein. %LasonNa v. Ae Ra$os, 330 '0RA 183 %2003(. ,t is an established rule that in order for $alicious prosecution to prosper, the follo ing re)uisites $ust be proven b! petitioner* %1( the fact of prosecution and the further fact that the defendant %respondent( as hi$self the prosecutor, and that the action finall! ter$inated ith an ac)uittal> %2( that in bringing the action, the prosecutor acted ithout probable cause> and %+( that the prosecutor as actuated or i$pelled b! legal $alice, that is, b! i$proper or sinister $otive. The foregoing are necessar! to preserve a person-s right to litigate hich $a! be e$asculated b! the undue filing of $alicious prosecution cases. 5ro$ the foregoing re)uire$ents, it can be inferred that $alice and ant of probable cause $ust both be clearl! established to justif! an a ard of da$ages based on $alicious prosecution. %,d. At 182E189> &illanueva v. D0P/, 4.R. <o. 1+2291, 9arch ?, 2000, +2? '0RA +91, 300> Ponce v. :egaspi, 4.R. <o. ?9123, 9a! =, 1992, 202 '0RA +??, +22(. A clai$ for da$ages based on $alicious prosecution ill prosper onl! if the three ele$ents aforecited are sho n to e#ist. ,n this case, the cases ere dis$issed b! the prosecutor before the! could be filed in court, hence, the! did not end in ac)uittal. ,t cannot be li;e ise concluded that respondent A:P0 acted ithout probable cause hen it instituted the actions. The events hich led to the filing of the co$plaints are undisputed, and respondent A:P0 cannot be faulted for filing the$. ,n the earl! case of ,uc)anan v. Esteban, +2 Phil. +=+ %1918( it as stressed that Fone cannot be held liable in da$ages for $aliciousl! instituting a prosecution here he acted ith probable cause.G As 7ustice 9oreland e#plained in that case* Probable cause is the e#istence of such facts and circu$stances as ould e#cite the belief, in a reasonable $ind, acting on the facts ithin the ;no ledge of the prosecutor, that the person charged as guilt! of the cri$e for hich he as prosecuted. The general rule is ell settled that one cannot be held liable in da$ages for $aliciousl! instituting a prosecution here he acted ith probable cause. ,n other ords, a suit ill lie onl! in cases here a legal prosecution has been carried on ithout probable cause. And the reason for the rule as stated b! /lac;stone, is that it ould be a ver! great discourage$ent to public justice is prosecutors, ho had a tolerable ground of suspicion, ere liable to be sued at la hen their indict$ents $iscarried.

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Thus, the ele$ent of $alice and the absence of probable cause $ust be proved. %0hina /an;ing 0orp. v. 0A, 4.R. <o. 93122, 9arch 22, 1993, 2+1 '0RA 3?2, 3?2> Albenson "nterprise 0orp. v. 0A, 4.R. <o. 22=93, 7anuar! 11, 199+, 21? '0RA 1=, 29(. There $ust be proof that the prosecution as pro$pted b! a sinister design to ve# and hu$iliate a person, and that it as initiated deliberatel! ;no ing that the charge as false and baseless to entitle the victi$s to da$ages. The t o ele$ents $ust si$ultaneousl! e#ist> other ise, the presence of probable cause signifies, as a legal conse)uence, the absence of $alice. %:ucas v. Ro!o, 4.R. <o. 1+=128, 1ctober +0, 2000> +33 '0RA 321(. ,n the instant case, it is evidence that respondent A:P0 as not $otivated b! $alicious intent or b! a sinister design to undul! harass petitioner, but onl! b! a ellEfounded an#iet! to protect its rights. Respondent A:P0 cannot therefore be faulted in availing of the re$edies provided for b! the la . ,n a free societ!, controversies are heard and settled under the rule of la in the foru$ of the courts of justice. ,t is one of the virtues of our s!ste$ of govern$ent that a person ho feels aggrieved does not have to ta;e the la into his or her hands or resort to the use of force for the vindication of injur!. The courts are there to hear and act on the co$plaint. The right to litigate is an escape valve to relieve the pressures of personal disagree$ents that $ight other ise e#plode in ph!sical confrontation. ,t is necessar! not onl! for upholding one-s clai$s hen the! are unjustl! denied but also for the $aintenance of peace, if not good ill, a$ong incipient antagonists. Hithout the right to litigate, conflicting clai$s cannot be e#a$ined and resolved in accordance ith one of the pri$ar! purposes of govern$ent, hich is to provide for a just and orderl! societ!. .ence, the $ere act of sub$itting a case to the authorities for prosecution does not render a person liable for $alicious prosecution should he or she be unsuccessful, for the la could not have $eant to i$pose a penalt! on the right to litigate. %Rivera v. Ro$an, 4.R. <o. 132302, 'epte$ber 20, 2008, 3?0 '0RA 2?=> 'aber v, 0A, supra., at 290> 0hina /an;ing 0orp. v. 0A, supra.(.

From Civ.law.bar.handouts. 2007 D/ASI + 3%o2i'ate cause. ,n ambert, et al. vs. -eirs of Ra" Castillon, et al ., 4.R. <o. 1=0?09, 5ebruar! 2+, 2008, the deceased and another person ere on board a $otorc!cle. The! ere traversing a road in ,ligan 0it!, follo ing a jeepne! hich as traveling along the sa$e direction. 'uddenl!, the jeepne! turned left hich resulted in an accident. As a conse)uence, one of the riders of the $otorc!cle died and the other got injured. A co$plaint for da$ages as filed. The defendant ELICT

75

contended that the deceased had contributor! negligence. The core of the issue is the cause of the death of the decedent. The 'upre$e 0ourt *eld$ The abrupt and sudden left turn b! the driver of the jeep ithout first establishing his right of a!, as the pro#i$ate cause of the $ishap hich clai$ed the life of the deceased and injur! to the other. Pro#i$ate cause is defined as that hich, in the natural and continuous se)uence, unbro;en b! an! efficient, intervening cause, produces the injur!, and ithout hich the result ould not have occurred. The cause of collision is traceable to the negligent act of he jeep driver, for ithout that left turn e#ecuted ith no precaution, the $ishap in all probabilit! ould not have happened. There as an invocation of Ra"nera vs. -iceta, +=8 Phil. 83= %1999(. /ut that case is not applicable. That case also involved a $otorc!cle crashing into the left rear portion of another vehicle, and it has declared that drivers of vehicles F ho bu$p the rear of another vehicleG are presu$ed to be Fthe cause of the accident, unless contradicted b! other evidenceG. ,n Ra!nera, the death of the victi$ as solel! attributable to his o n negligence in bu$ping the rear of the trailer truc; hich as traveling ahead of hi$ 20 to +0 ;ilo$eters per hour. Ra!nera, being the driver of the rear vehicle, had full control of the situation as he as in a position to observe the vehicle in front of hi$. The trailer truc; therein did not $a;e a sudden left turn as in the case at bar. Thus, the theor! that drivers of vehicles F ho bu$p the rear of another vehicleG are presu$ed to be the cause of the accident is, as in this case, sufficientl! contradicted b! evidence, hich is the sudden left turn $ade b! the jeep driver hich pro#i$atel! caused the collision. The deceased is guilt! of contributor! negligence as defined under Article 21?9 of the 0ivil 0ode, it is e)uitable to increase the ration of apportion$ent of da$ages on account of the victi$-s negligence. 3%inciple unde%lying negligence. cont%ibuto%y

The underl!ing precept on contributor! negligence is that a plaintiff ho is partl! responsible for his o n injur! should not be entitled to recover da$ages in full but $ust bear the conse)uences of his o n negligence. The defendant $ust thus be held liable onl! for the da$ages actuall! caused b! his negligence. %'!;i vs. /egasa, 313 '0RA 2+? %200+(. The deter$ination of the $itigation of the defendant-s liabilit! varies depending on the circu$stances of each case. The 0ourt had sustained a $itigation of 80B in Ra+es vs. A' 4 $, ? Phil. +89 %190?( in $)oenix Construction, %nc. vs. %ntermediate Appellate Court and ,C Air Cargo, %nc. vs. Court of Appeals, +11 Phil. ?18> and 30B in ,an+ of t)e $)ilippine %slands vs. Court of Appeals, 21= '0RA 81> and $)ilippine ,an+ of Commerce vs. Court of Appeals, ++= Phil. ==?.

76

Dnder Article 11?2, Fliabilit! %for culpa contractual( $a! the courts, according to the circu$stances.G This $eans that e#ercised the proper diligence in the selection and supervision or if the plaintiff as guilt! of contributor! negligence, then, reduce the a ard of da$ages.

be regulated b! if the defendant of its e$plo!ee, the courts $a!

,n $)ilippine ,an+ of Commerce vs. CA, here the 0ourt held the depositor guilt! of contributor! negligence, the 0ourt allocated the da$ages bet een the depositor and the ban; on a 30E=0 ration. Appl!ing the sa$e ruling to this case, it as held that :.0. Aia6 $ust shoulder 30B of the actual da$ages a arded b! the appellate court. 'olid /an; $ust pa! the other =0B of the actual da$ages. E'ploye%:s liability based on to%t is p%i'a%y( delict&subsidia%y. istinction bet;een the liability of an e'ploye% in ?uasi&delicts f%o' c%i'es. An e$plo!er-s liabilit! based on a )uasiEdelict is pri$ar! and direct, hile the e$plo!er-s liabilit! based on a delict is $erel! subsidiar!. %People vs. 5abro, 9+ '0RA 200 %19?9(. The ords Fpri$ar! and directG as contrasted ith Fsubsidiar!G, refer to the re$ed! provided b! la for enforcing the obligation rather than to the character and li$its of the obligation. %++A Hords and Phrases 218 %19?, "d.(. Although liabilit! under Article 2120 originates fro$ negligent act of the e$plo!ee, the aggrieved part! $a! sue the e$plo!er directl!. Hhen an e$plo!ee causes da$age, the la presu$es that the e$plo!er has hi$self co$$itted an act of negligence in not preventing or avoiding the da$age. This is the fault that the la conde$ns. Hhile the e$plo!er is civill! liable in a subsidiar! capacit! for the e$plo!ee-s cri$inal negligence, the e$plo!er is also civill! liable directl! and separatel! for his o n civil negligence in failing to e#ercise due diligence in selecting and supervising his e$plo!ee. The idea that the e$plo!er-s liabilit! is solel! subsidiar! is rong. %/arredo vs. 4arcia, supra.(. The action can be brought directl! against the person responsible %for another(, ithout including the author of the act. The action against the principal is accessor! in the sense that it i$plies the e#istence of a prejudicial act co$$itted b! the e$plo!ee, but it is not subsidiar! in the sense that it can not be instituted till after the judg$ent against the author of the act or at least, that it is subsidiar! to the principal action> the action for responsibilit! of the e$plo!ee is in itself a principal action. %/arredo vs. 4arcia, citing :aurent,

77

20 Principles of 5rench 0ivil :a , ?+3E?+8 %'panish Translation(. Thus, there is no need in this case for the trial court to ac)uire jurisdiction over the driver. The trial court-s ac)uisition of jurisdiction over the bus o ner is sufficient to dispose of the present case on the $erits. Liability of <oint to%tfeaso%s is solida%y in natu%e. QE A truc; of Pa$panga 'ugar Aevelop$ent 0o., ,nc. carr!ing sugar cane $et an accident at the <:"R. As a conse)uence of hich, a pile of sugarcane in the $iddle of both lanes of the high a! ere found. "$plo!ees of he P<00 placed lit cans ith diesel oil on the lanes to arn $otorists of the obstruction. The e$plo!ees together ith PA'DA"01 cleared the high a!, then re$oved the lit cans and left at 8*38 a.$. There ere ho ever flattened sugarcane scattered on the road. At =*+0 a.$. Rodrigo Arnai6 as driving his car to ards /aguio and ran over the scattered sugarcanes. The car turned turtle several ti$es resulting in injuries to hi$ and his passengers. A co$plaint for da$ages as filed against PA'DA"01 and P<00. P<0 ans ered that it as due to the unreasonable speed of the car of Arnai6 that it turned turtle. ,t also clai$ed that the pro#i$ate cause of the $ishap as PA'DA"01-s gross negligence and failure to clear the area co$pletel!. ,t also alleged that Arnai6 had contributor! negligence. The RT0 held PA'DA"01 liable. ,t dis$issed the case against P<00. The 0A $odified holding the$ solidaril! liable. P<00 $aintained that it should onl! be PA'DA"01 that should be liable as it as not negligent in the operation of the high a!. ,s the contention correctI Hh!I .eld* <o. P<00 failed to e#ercise the re)uisite diligence in $aintaining the <:"R safe for $otorists. The lighted cans and lane dividers on the high a! ere re$oved even as flattered sugarcanes la! scattered on the ground. The high a! as still et fro$ the juice and sap of the sugarcanes. P<00 could have foreseen that the et condition of the high a! ould endanger $otorists passing b! at night or in the ee hours of the $orning. PA'DA"01-s negligence in transporting sugarcanes ithout proper harnessKstraps, and that of P<00 in re$oving the e$ergenc! arning devices, ere t o successive negligent acts hich ere the direct and pro#i$ate cause of the injuries of the plaintiffs, hence, the! are solidaril! liable. As held in !abido vs. Custodio, 1? '0RA 1022* FAccording to the great eight of authorit!, here the concurrent or successive negligent acts or o$ission of t o or $ore persons, although acting independentl! of each other, are, in co$bination, the direct and pro#i$ate cause of a single injur! to a third person and it is i$possible to deter$ine in hat proportion each contributed to the injur!, either is

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responsible for the hole injur!, even though his act alone $ight not have caused the entire injur!, or the sa$e da$age $ight have resulted fro$ the acts of the other tortfeasors.G %P<00 vs. 0A, et al., 4.R. <o. 1892?0, August 22, 2008> 0ere6o vs. Tua6on, 4.R. <o. 1318+2, 9arch 2+, 2003(. Registe%ed o;ne% of vehicle liable fo% da'ages %ega%dless of ;hethe% d%ive% is autho%iCed o% not. The petitioner insisted that he is not liable for da$ages in a vehicular accident since the driver of the vehicle at the ti$e of the accident as not an authori6ed driver of the ne %actual( o ner of the vehicle. .e clai$ed that the ruling in &irst (ala"an easing and &inance Corporation vs. CA , 209 '0RA ==0, i$plies that to hold the registered o ner liable for da$ages, the driver of the vehicle $ust have been authori6ed, allo ed and per$itted b! its actual o ner to operate and drive it. Thus, if the vehicle is driven ithout the ;no ledge and consent of the actual o ner, then the registered o ner cannot be held liable for da$ages. .e further argued that this as the underl!ing theor! behind Duavit vs. CA, 1?+ '0RA 390, herein the court absolved the registered o ner fro$ liabilit! after finding that the vehicle as virtuall! stolen fro$ the o ner-s garage b! a person ho as neither authori6ed nor e$plo!ed b! the o ner. Petitioner concludes that the ruling in Auavit and not the one in 5irst 9ala!an should be applicable to hi$. Rule on the contention. "#plain. Ans er* The contention lac;s $erit. Hhether the driver is authori6ed or not b! the actual o ner is irrelevant to deter$ining the liabilit! of the registered o ner ho the la holds pri$aril! and directl! responsible for an! accident, injur! or death caused b! the operation of the vehicle in the streets and high a!s. To re)uire the driver of the vehicle to be authori6ed b! the actual o ner before the registered o ner can be held accountable is to defeat the ver! purpose h! $otor vehicle legislations are enacted in the first place. The $ain purpose of vehicle registration is the eas! identification of the o ner ho can be held responsible for an! accident, da$age or injur! caused b! the vehicle. "as! identification prevents inconvenience and prejudice to a third part! injured b! one ho is un;no n or unidentified. To allo a registered o ner to escape liabilit! b! clai$ing that the driver as not authori6ed b! the ne %actual( o ner results in the public detri$ent the la see;s to avoid. %&illanueva vs. Ao$ingo, et al., 4.R. <o. 1332?3, 'epte$ber 20, 2003(.

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#ot necessa%y that the d%ive% be autho%iCed d%ive% fo% the o;ne% to be liable. Hhether or not the driver of the vehicle during the accident as authori6ed is not at all relevant to deter$ining the liabilit! of the registered o ner. This $ust be so if e are to co$pl! ith the rationale and principle behind the registration re)uire$ent under the $otor vehicle la . ,t has been consistentl! ruled that the registered o ner of an! vehicle is directl! and pri$aril! responsible to the public and third persons hile it is being operated. The rationale behind such doctrine as e#plained a! bac; in 198? in Erezo vs. Jepte here it as said that the principle upon hich this doctrine is based is that in dealing ith vehicles registered under the Public 'ervice :a , the public has the right to assu$e or presu$e that the registered o ner is the actual o ner thereof, for it ould be difficult for the public to enforce the actions that the! $a! have for injuries caused to the$ b! the vehicles being negligentl! operated if the public should be re)uired to prove ho the actual o ner is. .o ould the public or third persons ;no against ho$ to enforce their rights in case of subse)uent transfers of the vehiclesI He do not i$pl! b! his doctrine, ho ever, that the registered o ner $a! not recover hatever a$ount he had paid b! virtue of his liabilit! to third persons fro$ the person to ho$ he had actuall! sold, assigned or conve!ed the vehicle. %&illanueva vs. Ao$ingo, et al., 4.R. <o. 1332?3, 'epte$ber 20, 2003(. Liability of <oint to%tfeaso%s. The petitioner is the o ner of a gasoline station in Aringa!, :a Dnion. 5inding the need for additional se erage and septic tan;s for its ashroo$s, it engaged the services of Aioscoro Loro a construction contractor to do the or;. The contract provided as follo s* #### F3. An! da$age ithin or outside the propert! of the 5,R'T PARTL incurred during the digging shall be borne b! the '"01<A PARTL> 8. ,n the event that valuable objects are found on the propert!, the sa$e shall be divided a$ong the parties as follo s* 5,R'T PARTL =0B '"01<A PARTL 30B =. ,n the event that valuable objects are found outside the propert! line during the said digging, the sa$e shall be divided a$ong the parties as follo s*

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5,R'T PARTL +8B '"01<A PARTL =8B ,n the process of conducting the digging, the respondent infor$ed the petitioner that the digging traversed and penetrated a portion of the land belonging to the respondent. The foundation of the chapel as affected as a tunnel as drugged directl! under it to its da$age and prejudice. A co$plaint as filed against the petitioner, and Loro. Petitioner interposed the defense that it as Loro alone ho should be liable as it is proved for in the contract. The RT0 held the$ solidaril! liable holding the$ to be joint tortfeasors. ,t as affir$ed b! the 0A sa!ing that the basis of their solidarit! is not the 9e$orandu$ of Agree$ent but the fact that the! have beco$e joint tortfeasors. There is solidar! liabilit! onl! hen the obligation e#pressl! so states, or hen the la or the nature of the obligation re)uires solidarit!. The 0A found that the real purpose of the digging treasure and the! ere partners in the endeavor. ,s the ruling of the 0A correctI "#plain. .eld* Les, as the! are joint tortfeasors, hence, liable for da$ages based on quasi 5 delict. The tortuous act as the e#cavation hich caused da$age to the respondent because it as done surreptitiousl! ithin its pre$ises and it $a! have affected the foundation of the chapel. The e#cavation on respondent-s pre$ises as caused b! fault. 5inall!, there as no pre e#isting contractual relation bet een the petitioner and Loro on the one hand, and the respondened on the other. 5or the da$age caused to respondent, petitioner Loro are jointl! %solidaril!( liable as the! are joint tortfeasors. &eril!, the responsibilit! of t o or $ore persons ho are liable for a quasi 5 delict is solidar!. %Art. 2193, <00(. The heav! reliance of petitioner in paragraph 3 of the 91A cited earlier cannot steer hi$ clear of an! liabilit!. As a general rule, joint tortfeasors are all the persons ho co$$and, instigate, pro$ote, encourage, advise, countenance, cooperate in, aid or abet the co$$ission of a tort, or ho approve of it after it is done, if done for their benefit. %Horcester vs. 1ca$po, 22 Phil. 32 %1912(> citing 0oole! on Torts, 1++> 9oir vs. .op;ins, 1= ,ll., +1+ %=+ A$. Aec., +12 and note(> /err! vs. 5letch, 1 st Aill., =?> '$ith ic; vs. Hard, ? 7ones :. =3> '$ith vs. 5elt, 80 /arb. %<.L.(, =12> 'hepard 9cQuil;in, 2 H. &a., 90> :e is vs. 7ohns, +3 0al., 2=9(. ,ndubitabl!, petitioner and Loro cooperated in co$$itting the tort. The! even had provisions in their 91A as to ho the! ould divide the treasure if an! is found ithin or outside petitioner-s propert! line. Thus, that insures that he be as to find hidden

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so declared as liable. %7ohn @a$ /ia; L. 0han, 7r. vs. ,glesia ni 0risto, ,nc., 4.R. <o. 1=022+, 1ctober 13, 2008(. oct%ine of last clea% chance. oct%ine of last clea% chance is not applicable in the %elationship of the ban@ and the deposito%s. The doctrine of last clear chance states that here both parties are negligent but the negligent act of one is appreciabl! later than that of the other, or here it is i$possible to deter$ine hose fault or negligence caused the loss, the one ho had the last clear chance or opportunit! to avoid the loss but failed to do so, is chargeable ith the loss. 'tated differentl!, the antecedent negligence of the plaintiff does not preclude hi$ fro$ recovering da$ages caused b! the supervening negligence of the defendant, ho had the last fair chance to prevent the i$pending har$ b! the e#ercise of due diligence. %Philippine /an; of 0o$$erce vs. 0A, supra.(. The 0ourt did not appl! the doctrine of last clear chance to the present case. 'olid /an; is liable for breach of contract due to negligence in the perfor$ance of its contractual obligation to :.0. Aia6. This is a case of culpa contractual, here neither the contributor! negligence of the plaintiff nor his last clear chance to avoid the loss, ould e#onerate the defendant fro$ liabilit!. 'uch contributor! negligence or last clear chance b! the plaintiff $erel! serves to reduce the recover! of da$ages b! the plaintiff but does not e#culpate the defendant fro$ his breach of contract. %Ael Prado vs. 9anila "lectric 0o., 82 Phil. 900> 0onsolidated /an; C Trust 0orp. vs. 0A, et al., 4.R. <o. 1+28=9, 'epte$ber 11, 200+(. A!A"ES !,RAL A!A"ES !o%al da'ages a;a%ded conviction fo% biga'y. in a

A $an $isrepresented hi$self to be single, thus, after a short courtship, the o$an agreed to $arr! hi$. Then, he abandoned the o$an ho found out that he as $arried. ,n contesting the a ard, he cited $eople vs. ,ondoc, 0AE 4R <o. 228?+ER, April 2+, 1989, here a ard of $oral da$ages as not allo ed in a biga$! case. .e $aintained that $oral da$ages $a! be a arded onl! in an! of the cases provided in Article 2219 of the 0ivil 0ode, and biga$! is not one of the$.

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Hhen the accused courted the co$plainant and proposed to $arr! her, he assured her that he as single. .e even brought his parents to the house of the private co$plainant here he and his parents $ade the sa$e assurance that he as single. Thus, the co$plainant agreed to $arr! the accused, ho even stated in the certificate of $arriage that he as single. 'he lived ith the accused and dutifull! perfor$ed her duties as his ife, believing all the hile that he as her la ful husband. 5or t o !ears or so until the petitioner heartlessl! abandoned her, the co$plainant had no in;ling that he as alread! $arried to another before the! ere $arried. The 0ourt of Appeals a arded $oral da$ages to the co$plainant, sa!ing that hile biga$! is not included in those cases enu$erated in Article 2219 of the 0ivil 0ode, it is not proscribed fro$ a arding $oral da$ages against the accused and said that it is not bound b! the ruling in $eople vs. ,ondoc. ,s the decision of the 0ourt of Appeals correctI Hh!I Ans er* Les. The la does not intend that $oral da$ages should be a arded in all cases here the aggrieved part! has suffered $ental anguish, fright, $oral an#ieties, bes$irched reputation, ounded feelings, $oral shoc;, social hu$iliation and si$ilar injur! arising out of an act or o$ission of another, other ise, there ould not have been an! reason for the inclusion of specific acts in Article 2219 and analogous cases % hich refer to those cases bearing analog! or rese$blance, corresponds to so$e others or rese$bling, in other respects, as in for$, proportion, relation, etc.(. /iga$! is not one of those specificall! $entioned in Article 2219 of the 0ivil 0ode in hich the offender $a! be ordered to pa! $oral da$ages to the offended part!. <evertheless, the accused is liable to the co$plainant for $oral da$ages under Article 2219 in relation to Article 19, 20 and 21 of the 0ivil 0ode. Dnder Article 19, Fever! person $ust, in the e#ercise of his rights and in the perfor$ance of his duties, act ith justice, give ever!one his due, and observe honest! and good faith.G This provision contains hat is co$$onl! referred to as the principle of abuse of rights, and sets certain standards hich $ust be observed not onl! in the e#ercise of one-s right but also in the perfor$ance of one-s duties. The standards are the follo ing* act ith justice> give ever!one his due> and observe honest! and good faith. The ele$ents for abuse of rights are* %a( there is a legal right or dut!> %b( e#ercised in bad faith> and %c( for the sole intent of prejudicing or injuring another. %Albenson "nt. 0orp. vs. 0A, 4.R. <o. 22==93, 7anuar! 11, 199+, 21? '0RA 1=(. Article 20 spea;s of the general sanctions of all other provisions of la hich do not especiall! provide for its o n sanction. Hhen a right is e#ercised in a $anner hich does not confor$ to the standards set forth in the said provision and results in da$age to another, a legal rong is thereb! co$$itted for hich the rongdoer $ust be responsible. %4lobe 9ac;a! 0able C Radio 0orp. vs. 0A, 4.R. <o. 2122=2, August 28, 1929, 1?= '0RA ??2(. ,f the provision does not

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provide a re$ed! for its violation, an action for da$ages under either Article 20 or Article 21 of the 0ivil 0ode ould be proper. Article 20 provides that Fever! person ho, contrar! to la , illfull! or negligentl! causes da$age to another shall inde$nif! the latter for the sa$eG. 1n the other hand, Article 21 provides that Fan! person ho illfull! causes loss or injur! to another in a $anner that is contrar! to $orals, good custo$s or public polic! shall co$pensate the latter for da$agesG. The latter provision is adopted to re$ed! Fthe countless gaps in the statutes hich leave so $an! victi$s of $oral rongs helpless, even though the! have actuall! suffered $aterial and $oral injur! should vouchsafe ade)uate legal re$ed! for that untold nu$ber of $oral rongs hich it is i$possible for hu$an foresight to prove for specificall! in the statutesG. Hhether or not the principle of abuse of rights has been violated resulting in da$ages under Article 20 or Article 21 of the 0ivil 0ode or other applicable provisions of la depend upon the circu$stances of each case. The co$plainant as an innocent victi$ of the accused-s chicaner! and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Aa! b! da!, he $aintained the appearance of being a la ful husband to the co$plainant, ho changed her status fro$ a single o$an to a $arried o$an, lost the consortiu$, attributes and support of a single $an she could have $arried la full! and endured $ental pain and hu$iliation, being bound to a $an ho it turned out as not her la ful husband. %:eventhal vs. :iber$an, 12= <.". =?8 %19++(. The accused-s collective acts of fraud and deceit before, during and after his $arriage ith the co$plainant ere illful, deliberate and ith $alice and caused injur! to the latter. That she did not sustain an! ph!sical injuries is not a bar to an a ard for $oral da$ages. The acts of the accused are against public polic! as the! under$ined and subverted the fa$il! as a social institution, good $orals and the interest and general elfare of societ!. /ecause the co$plainant as an innocent victi$ of the accused-s perfid!, she is not barred fro$ clai$ing $oral da$ages. /esides, even considerations of public polic! ould not prevent her fro$ recover!. %"duardo 9anuel vs. People, 4.R. <o. 1=8232, <ove$ber 29, 2008(. Liability of ban@ in dishono%ing a ;ell&funded chec@. A ban;-s gross negligence in dishonoring a ellEfunded chec;, aggravated b! its unreasonable dela! in repairing the error, calls for an a ard of $oral and

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e#e$plar! da$ages. The resulting injur! to the chec; riter-s reputation and peace of $ind needs to be recogni6ed and co$pensated. ,n holding a ban; liable for $oral da$ages, the 'upre$e 0ourt said that case la la!s out the follo ing conditions for the a ard of $oral da$ages* %1( there is an injur! hether ph!sical, $ental or ps!chological clearl! sustained b! the clai$ant> %2( the culpable act or o$ission is factuall! established> %+( the rongful act or o$ission of the defendant is the pro#i$ate cause of the injur! sustained b! the clai$ant> and %3( the a ard of da$ages is predicated on an! of the cases stated in Article 2219 of the 0ivil 0ode. %Dnited 0oconut Planters /an; vs. Ra$os, 318 '0RA 89=, <ove$ber 11, 200+> 0atha! Pacific Air a!s, :td. vs. 'pouses &a6)ue6, +99 '0RA 20?, 9arch 13, 200+> 0it!trust /an;ing 0orporation vs. &illanueva, +=1 '0RA 33=, 7ul! 19, 2001> "#pertravel and Tours, ,nc. vs. 0A, +09 '0RA 131, 7une 28, 1999(. The plaintiff is a ban; depositor of long standing. 'he or;s ith 0entral <egros "lectric 0ooperative, ,nc. as e#ecutive secretar! and later depart$ent secretar!. 'he is a deaconess. These are positions hich no doubt elevate her social standing in the co$$unit!. Dnderstandabl! and as sufficientl! proven b! her testi$on! she suffered $ental anguish, serious an#iet!, bes$irched reputation, ounded feelings and social hu$iliation> and she suffered the$ hen the people she or;ed ith her friends, her fa$il! and even her daughter-s class$ates learned and tal;ed about her bounced chec;. The subject chec; as ade)uatel! funded, but that ban; rongfull! dishonored it, and rongful dishonor of her chec; as the pro#i$ate cause of her e$barrass$ent and hu$iliation in her or;place, in her o n ho$e, and in the church here she served as deaconess. The ban; treated her account as closed, $erel! because the ledger could not be found as a rec;less act that could not si$pl! be brushed off as an honest $ista;e. ,t has al a!s been e$phasi6ed that the ban;ing industr! is i$pressed ith public interest. 0onse)uentl!, the highest degree of diligence is e#pected, and high standards of integrit! and perfor$ance are even re)uired of it. /! the nature of its functions, a ban; is under obligation to treat the accounts of its depositors ith $eticulous care and al a!s to have in $ind the fiduciar! nature of its relationship ith the$. %/an; of P.,. vs. 0asa 9ontessori ,nternationale, 4.R. <o. 39383, 9a! 22, 2003> 'olidban; 0orp. vs. 'ps. Arrieta, 4.R. <o. 182?20, 5ebruar! ?, 2008(. The ban;-s negligence as so gross as to a$ount to a illful injur! to the depositor. Article 21 of the 0ivil 0ode states that Fan! person ho illfull! causes loss or injur! to another in a $anner that is contrar! to $orals, good custo$s or public polic! shall co$pensate the latter for the da$ageG. 5urther, Article 2219

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provides for the recover! of $oral da$ages for acts referred to in the afore$entioned Article 21. .ence, the ban; is liable for $oral da$ages to the depositor. A;a%d of e2e'pla%y da'ages. The la allo s the grant of e#e$plar! da$ages to set an e#a$ple for the public good. The business of a ban; is affected ith public interest> thus, it $a;es a s orn profession of diligence and $eticulousness in giving irreproachable service. 5or this reason, the ban; should guard against injur! attributable to negligence or bad faith on its part. The ban;ing sector $ust at all ti$es $aintain a high level of $eticulousness. The grant of e#e$plar! da$ages is justified b! the initial carelessness of the ban;, aggravated b! its lac; of pro$ptness in repairing its error. %'olidban; 0orp. vs. 'ps. Arrieta, 4.R. <o. 182?20, 5ebruar! 1?, 2008(. C,!3E#SAT,R- A!A"ES A;a%d of co'pensato%y da'ages cannot be based on ba%e testi'ony( e2ceptions. A passenger died. Prior to her death, she as a 'ection 0hief of the /,R in Tuguerarao, 0aga!an. .er husband testified that she as earning P2+,022.00 prior to her death but he did not present an! docu$entar! evidence. The lo er courts a arded P1,1+8,8+=.10 as co$pensator! da$ages. Ruling that the a ard as not proper, the '0 .eld* <o, the a ard is erroneous. As a rule, docu$entar! evidence should be presented to substantiate the clai$ for da$ages for the loss of earning capacit!. The onl! e#ceptions are* %1( hen the deceased is selfEe$plo!ed earning less than $ini$u$ age under current labor la s> %2( hen the deceased is e$plo!ed as a dail! age or;er earning less than the $ini$u$ age under the current la s. ,n these t o instances, judicial notice $a! be ta;en of the fact that in the deceased-s line of or; no docu$entar! evidence is available. .ere the lo er courts co$puted the a ard of co$pensator! da$ages for the loss of earning capacit! onl! on the basis of the testi$on! of the husband. The a ard is erroneous because the deceased earnings do not fall ithin the e#ceptions. %&ictor! :iner, ,nc. vs. 4a$$ad, et al., 4.R. <o. 189=+=, <ove$ber 28, 2003(. %'ee also* People vs. 9allari, 4.R. <o. 13899+, 7une 1?, 200+> People vs. 0araig, 4.R. <o. 11=223, 9arch 22, 2003> People vs. Auetes, et al., 4.R. <o. 133892, 5ebruar! =, 2003(. *ei%s entitled to te'pe%ate and 'o%al da'ages.

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Te$perate or $oderate da$ages hich are $ore than no$inal but less than co$pensator! $a! be recovered hen the court finds that so$e pecuniar! loss has been suffered but its a$ount cannot, fro$ the nature of the case be proved. 'ince the fact of loss of earnings has been established, te$perate da$ages can be a arded together ith P80, 000.00 as inde$nit! for her death. 9oral and e#e$plar! da$ages $a! li;e ise be a arded. %&ictor! :iner, ,nc. vs. 4a$$ad, et al., 4.R. <o. 189=+=, <ove$ber 28, 2003(. !ALICI,/S 3R,SEC/TI,# %9oral Aa$ages( The%e can be no liability if one enfo%ces a %ight. There as a co$plaint for estafa but it as dis$issed. Thereafter, the accused filed a co$plaint for da$ages based on $alicious prosecution contending that b! filing baseless cri$inal suits, the co$plainants have subjected the accused and his fa$il! to untold an#iet!, disgrace and financial ruin. The co$plainants in the cri$inal case contended that the cri$inal actions ere filed as a valid e#ercise of their rights to pursue their legiti$ate clai$s. Aecide. .eld* <o. There is $alicious prosecution hen a person directl! insinuates or i$putes to an innocent person the co$$ission of a cri$e and the accused is co$pelled to defend hi$self in court. Hhile generall! associated ith unfounded cri$inal actions, the ter$ has been e#panded to include unfounded civil suits instituted just to ve# and hu$iliate the defendant despite the absence of a cause of action or probable cause. %/a!ani vs. Pana! "lectric 0o., ,nc., ++0 '0RA ?89 %2000(. Fhen liability attaches in case of 'alicious p%osecution. To $erit the a ard of da$ages in a case of $alicious prosecution, the aggrieved part! $ust prove* %1( that he has been denounced or charged falsel! of an offense b! the defendant, %2( that the latter ;no s that the charge as false or lac;s probable cause, %+( that the said defendant acted ith $alice, and, of course, %3( the da$age he has suffered. %&entura vs. /ernabe, +2 '0RA 82?(. The ele$ents of ant of probable cause and $alice $ust si$ultaneousl! e#ist> other ise, the presence of probable cause signifies, as a legal conse)uence, the absence of $alice. %:ucas vs. Ro!o, +33 '0RA 321(. 1n these, there $ust be proof that the prosecution as pro$pted b! a sinister design to ve# and hu$iliate a person, and that it as initiated deliberatel! ;no ing that the charge as false and baseless to entitle the victi$ to da$ages.

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,t is a doctrine ellEentrenched in jurisprudence that the $ere act of sub$itting a case to the authorities for prosecution does not $a;e one liable for $alicious prosecution, for the la could not have $eant to i$pose a penalt! on the right to litigate. %:ao vs. 0A, 2?1 '0RA 3??(. ,t is a sound principle of justice and public polic! that persons shall have free resort to the courts for redress of rong and vindication of their rights. %0aca!oren vs. 'uller, +33 '0RA 1== %2000((. This is not to under$ine a previous ruling that the right to institute cri$inal prosecutions has its $etes and bounds and cannot be e#ercised $aliciousl! and in bad faith to the detri$ent and harass$ent of a person ho, ithout a cause, is pestered, inconvenienced, and rendered cashEstrapped inas$uch as such suits here libert! is at sta;e, co$pel an accused to hire a la !er and incur other e#penses for his defense. These $onetar! costs are the ps!chological burden that an accused and his fa$il! ould have to hurdle in the interregnum. ,ndeed, being tagged as an FaccusedG is b! itself trau$atic. <evertheless, the a ard of da$ages arising fro$ $alicious prosecution is justified if and onl! if it is proved that there as a $isuse or abuse of judicial processes or the institution and pursuit of legal proceedings for the purpose of harassing, anno!ing, ve#ing or injuring an innocent person. %0aca!oren vs. 'uller, +33 '0RA 189> 9arteris vs. 0o;eing, et al., 4.R. <o. 180192, 5ebruar! 1?, 2008(. ecla%ation of nullity of 'a%%iage on the g%ound of psychological incapacity ;ith a;a%d of 'o%al da'ages( ;hen p%ope%. There as a co$plaint for declaration of nullit! of $arriage filed b! <oel /uenaventura against his ife ,sabel 'ingh /uenaventura on the ground of ps!chological incapacit! contending that she deceived hi$. After trial, the court declared the $arriage void on the ground of ps!chological incapacit! and a arded $oral da$ages citing Articles 221? and 21 of the 0ivil 0ode. The '0 held that there can be no a ard of $oral da$ages, because the signs of ps!chological incapacit! $a! beco$e $anifest onl! after the sole$ni6ation of the $arriage. /! declaring the petitioner as ps!chologicall! incapacitated, the possibilit! of a arding $oral da$ages on the sa$e set of facts as negated. The a ard of $oral da$ages should be predicated, not on the $ere act of entering into the $arriage, but on specific evidence that it as done deliberatel! and ith $alice b! a part! ho had ;no ledge of his or her disabilit! and !et illfull! concealed the sa$e. F5or the sa$e reason, since ps!chological incapacit! $eans that one is trul! incognitive of the basic $arital covenants that one $ust assu$e and discharge as a conse)uence of $arriage, it re$oves the basis for the contention that the petitioner purposel! deceived the private respondent. ,f the private

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respondent as deceived, it as not due to a illful act on the part of the petitioner. Therefore, the a ard of $oral da$ages as ithout basis in la and in fact.G %<oel /uenaventura vs. 0A, et al., 4.R. <os. 12?+82> 12?339, 9arch +1, 2008(. Suspension of ca%d ;ithout notice. A co$plaint for da$ages as filed due to the suspension of the card of the plaintiff ithout notice. ,n fact, a da! before he departed for .ong;ong, he deposited D'S13, 000.00 in his dollar account ith the ban;. /ut despite this, his card as dishonored in .ong;ong. The defendant contended that his credit card privileges ere suspended due to the fact that he e#ceeded his credit li$it, and failed to settle prior credit purchases on due date thus, causing his obligation to beco$e due. The RT0 held the ban; liable for da$ages, but the 0A reversed although it held the ban; liable for $oral da$ages. ,t held that the ban; as not in bad faith and ithout $alice in suspending the card privileges. ,s the ruling correctI Hh!I .eld* <o. There is no basis to hold the ban; liable for negligence in not notif!ing the cardholder of the suspended status of the card privileges considering the auto$atic suspension ithout prior notice provision in the 0redit 0ard Agree$ent. The co$pan! cannot be assu$ed to have reinstated the card b! reason of the deposit of S13, 000.00. As issuer of the card, the ban; has the option to decide hether to reinstate or altogether ter$inate a credit card previousl! suspended on considerations hich the ban; dee$ed proper, based on the cardholder-s record, capacit! to pa!, and co$pliance ith an! re)uire$ent i$posed b! it. The situation in hich plaintiff found hi$self is a case of damnum absque injuria. %")uitable /an;ing 0orp. vs. 0alderon, 4.R. <o. 18=1=2, Aece$ber 13, 2003(. TE!3ERATE A!A"ES .une%al e2penses as te'pe%ate da'ages a;a%ded even if not p%oven ;ith %eceipts but up to 3A5) 666.66 only. ,n $eople vs. 2erba, 4. R. <o. 133899, 7une 9, 2003, in a cri$inal case for robber! ith ho$icide, the a$ount of funeral e#penses proven as onl! P12,000.00. The 'upre$e 0ourt ho ever, a arded P28, 000.00. ,t said that in $eople vs. Abrazaldo, +9? '0RA 1+? %200+(, the doctrine as laid do n that here the a$ount of actual da$ages for funeral e#penses cannot be deter$ined because of the absence of receipts to prove the$, te$perate da$ages $a! be a arded in the a$ount of P28, 0000. This doctrine specificall! refers to a situation here no evidence at all of funeral e#penses as presented in the trial court. .o ever, in instances here actual e#penses a$ount to less than P28,

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000 are proved during the trial, the ruling in the $ore recent case of $eople vs. 6illanueva, 4.R. <o. 1+91??, August 11, 200+, hich $odified the Abra6aldo doctrine, should be applied. ,n &illanueva, it as held that F hen actual da$ages proven b! receipts during the trial a$ount to less than P28, 000, the a ard of te$perate da$ages for P28, 000 is justified in lieu of the actual da$ages of a lesser a$ount. To rule other ise ould be ano$alous and unfair because the victi$-s heirs ho tried but succeeded in proving actual da$ages of an a$ount less than P28,000 ould be in a orse situation than those ho $ight have presented no receipts at all but ould no be entitled to P28, 000 te$perate da$ages. %'ee also People vs. Agunde6, et al., 4.R. <o. 1+2+2=E2?, 9a! 20, 2003> People vs. 'egnar, 5ebruar! 12, 2003(. #ot&so&fo%th%ight conduct of a pa%ty to a cont%act 'ay %ende% it liable fo% da'ages. QE A co$plaint for da$ages as filed b! Panacor 9ar;eting 0orporation and Ari6ona Transport 0orporation against Pre$iere Aevelop$ent /an; alleging loss of inco$e in its e#clusive dealership agree$ent ith 0olgate Pal$olive Phils. %0olgate(. ,t alleged that the! applied for loan ith the ban; but since the a$ount as not sufficient, the! applied for a ta;eEout loan ith ,/A 5inance 0orporation. ,/AE5inance agreed to grant the loan and even paid in full their loan ith Pre$ier, but despite the agree$ent bet een the ban; and ,/A, the ban; refused to surrender the title and other docu$ents to ,/A, hence, Panacor failed to generate the re)uired capital for its e#clusive dealership agree$ent ith 0olgate. Panacor and Ari6ona filed a co$plaint for specific perfor$ance ith da$ages against the ban;, ,/A intervened. After trial, the ban; as re)uired to surrender the title and other docu$ents to ,/A and held it liable for da$ages. 1n appeal, the ban; and ,/A entered into a co$pro$ise agree$ent hereb! the ban; agreed to return the a$ount of P=9 it paid earlier. The 0ourt of Appeals ho ever decided for Ari6ona and Panacor, hence, it appealed to the 'upre$e 0ourt. ,s Pre$iere liable to Panacor and Ari6ona for da$agesI "#plain. .eld* Les. Pre$ier is liable because of its bad faith in dealing ith Panacor and Ari6ona. Aespite the agree$ent bet een ,/A and the ban; of the approval of the loan ith ,/A, and the pa!$ent of the a$ount of P=9, it failed to co$pl! ith its obligation to surrender the title and other docu$ents to ,/A, thus, the latter failed to release the re$aining part of the loan, and conse)uentl!, it led to the revocation of the distributorship agree$ent. The notEsoEforthright conduct of Pre$iere in its dealings ith the corporations caused da$age to the$. ,ts contention that ith its co$pro$ise ith ,/A, it e#tinguished its obligations to the corporations is not proper. 'uch co$pro$ise did not e#tinguish all direct and collateral incidents to the aborted ta;eEout such that it also cancelled its obligation to Panacor. Thus, its obligations re$ained despite the co$pro$ise agree$ent. %Pre$iere Aevelop$ent /an; vs. 0A, et al., 4.R. <o. 189+82, April 13, 2003(.

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