Page |1

a mass health program to control epidemic;

c)  when the law makes it compulsory for everyone to submit a
1. 1987 Consti. Art II Section 15. The State shall protect and procedure;
promote the right to health of the people and instill health d)  When the patient  is either a minor, or legally incompetent, in
consciousness among them. which case. a third party consent Is required;
e)  when  disclosure  of  material  information  to  patient  will 
2. Art XII SECTION 14. The sustained development of a reservoir jeopardize  the success of treatment,  in which case, third  party
of national talents consisting of Filipino scientists, entrepreneurs, disclosure  and consent shall be in order;
professionals, managers, high-level technical manpower and skilled f)   When the patient waives his right in writing.
workers and craftsmen in all fields shall be promoted by the State.
The State shall encourage appropriate technology and regulate its Informed consent shall be obtained from a patient concerned if he is
transfer for the national benefit. of legal age and of sound mind. In case the patient is incapable of
giving consent and a third party   consent  is  required.  the 
The practice of all professions in the Philippines shall be limited to following  persons,  in  the  order  of  priority  stated hereunder, may
Filipino citizens, save in cases prescribed by law. give consent:

3. Art XIII SECTION 11. The State shall adopt an integrated and i.     spouse;
comprehensive approach to health development which shall ii.    son or daughter of legal age;
endeavor to make essential goods, health and other social services iii.   either parent;
available to all the people at affordable cost. There shall be priority iv.   brother or sister of legal age, or
for the needs of the underprivileged sick, elderly, disabled, women, v.    guardian
and children. The State shall endeavor to provide free medical care
to paupers. If a patient is a minor, consent shall be  ottained  from  his parents or
legal guardian. If next of kin, parents or  legal guardians  refuse to
give  consent  to  a medical or surgical  proceoure  necessary to save
4. Patients Rights the  life or limb of  a minor or a patient incapable of giving consent,
courts, upon the petition of the physician or any person interested in
1. Right to Appropriate Medical Care and Humane Treatment. - the welfare of the patient, in a summary proceeding, may issue an
Every person has a right to health and medical care corresponding to order giving consent.
his state of health, without any discrimination and within the limits
of the resources, manpowerand competence available for health and 3. Right to Privacy and Confidentiality.  -  The privacy of the
medical care at the relevant time. The patient has the right to patients must be assured at all stages of his treatment. The patient
appropriate health and medical care of good quality. In the course of has the right  to be free from unwarranted public exposure, except in
such, his human dignity, convictions, integrity, individual needs and the  foHowing cases: a) when his mental or physical condition is in
culture shall be respected. If any person cannot immediately be controversy and the appropriate court, in its discretion, order him to
given treatment that is medically necessary he shall, depending on submit to a physical or mental examination by a physician; b) when
his state of health, either be directed to wait for care, or be reffered the public health and safety so demand; and c) when the patient
or sent for treatment elsewhere, where the appropriate care can be waives this right in writing.
provided. If the patient has to wait for care, he shall be informed of
the reason for the delay. Patients in emergency shall be extended The patient has the right to demand that all information,
immediate medical care and treatment without any deposit, pledge, communication  and records pertaining to his care be treated as
mortgage or any form of advance paymentfor treatment. confidential. Any health care provider or practitioner involved in the
treatment  of a patient and all those who have legitimate access to
2. Right to Informed Consent. -  The patient has a right to a clear, the patient's record is not authorized to divulge any information to a
truthful and  substantial  explanation,  in  a  manner  and  language  third party  who  has  no concern  with  the  care  and  welfare  of 
understandable  to  the patient, of all proposed procedures, whether  the  patient  without  his consent, except:  a) when  such disclosure 
diagnostic, preventive, curative, rehabilitative or therapeutic, will benefit public  health and  safety; b) when it is in the interest of
wherein the person who will perform the said procedure shall justice and  upon the order of a competent court; and c) when the
provide  his  name  and credentials  to  the  patient,  possibilities  of  patients  waives  in writing the confidential  nature of such 
any  risk  of mortality or serious side effects, problems related to information; d) when  it is  needed  for  continued  medical 
recuperation, and probability of success  and  reasonable  risks  treatment  or  advancement  of  medical science subject to de-
involved:  Provided,   That  the  patient  will not  be subjected  to any identification  of patient and shared medical confidentiality  for
procedure without his written informed consent, except in the those who have access to the information.
following cases:
Informing the spouse or the family to the first degree of the patient's
a)  in emergency cases, when the patient is at imminent risk of medical condition may be allowed; Provided That the patient of
physical injury, decline Of  death if treatment is withheld or legal age shall have the right to choose on whom to inform. In case
postponed. In such cases, the physician can  perform  any diagnostic  the patient is not of legal age or is mentally incapacitated, such
or treatment  procedure  as good practice of medicine dictates information shall be given to the  parents, legal guardian  or his next
without such consent; of kin.
b)  when the health of the population is dependent on the adoption of
 Page |2

 4. Right to  Information. -  In the course  of his/her  treatment  when he/she suffers from the terminal phase of a terminal illness: 
and  hospital care, the patient or his/her legal guardian has a right to Provided That a) he is informed of the medical consequences of his
be informed of the result of the evaluation  of the nature and extent choice; b) he releases those involved in his care from any obligation
of his/her disease,  any other additional  or further  contemplated   relative to the consequences of his decision; c) his decision will not
medical  treatment on surgical procedure or procedures, including prejudice public health and safety.
any other additional medicines to be administered and their generic
counterpart including the possible complications  and other pertinent 7. Right to Religious  Belief. - The patient  has the  right to refuse
facts, statistics or studies,  regarding  his/her  illness,  any  change  in medical treatment or procedures which may be contrary to his
the  plan  of  care  before  the change  is  made,  the  person's  religious beliefs, subject to the limitations described in the preceding
participation  in the  plan  of  care  and  necessary changes  before its subsection: Provided,  That such a right shall not be imposed by
implementation, the  extent to  which payment  maybe  expected parents upon their children who have not reached the legal age in a
from Philhealth or any payor and any charges for which the patient life threatening situation as determined by the attending physician or
maybe liable, the disciplines of health care practitioners who will the medical director of the facility.
fumish the care and the frequency of services that are proposed to be
furnished. 8. Right to Medical Records. - The patient is entitled to a summary
of his medical history and condition.He has the right to view the
The patient or his legal guardian has the  right to examine and  be contents  of his medical records, except psychiatric notes and other
given an itemized bill of the hospital and medical services rendered incriminatory information obtained about third parties, with the
in the facility or by his/her physician and other health care providers, attending physician explaining contents thereof. At his expense and
regardless  of the manner and source of payment.He is entitled to a upon discharge of the patient, he may obtain from the health care
thorough explanation of such bill. institution a reproduction of the same record  whether or not he has
fully  settled  his financial obligation with the physician or institution
The  patient  or  hislher  legal guardian  has the  right to  be concerned.
informed  by the physician or his/her delegate of hisJher continuing
health care requirements following discharge, including instructions The health care  institution shall safeguard  the  confidentiality  of
about home medications, diet, physical activity and all other the medical records and to likewise ensure the integrity and
pertinent information to promote health and well-being. authenticity of the medical records and  shall  keep the same  within 
a  reasonable time  as  may be determined  by the Department of
At the  end of  his/her confinement, the patient is entitled  to a brief, Health.
written summary  of the  course  of  his/her  illness which  shall 
include  at least the  history, physical examination, diagnosis, The health care institution shall issue a medical certificate  to the
medications, surgical procedure, ancillary and laboratory procedures, patient upon request.Any other document that the patient may
and the plan of further treatment, and which shall be provided by the require for insurance claims shall also be made available to him
attending physician. He/she is likewise entitled  to the explanation  within forty-fIVe (45) days from request.
of, and to view, the contents of medical record of his/her
confinement but with the presence of his/her  attending   physician  9. Right to Leave. - The patient has the right  to leave hospital or
or  in  the  absence  of  the  attending  physician,  the hospital's any other health care institution regardless of his physical  
representative.  Notwithstanding that  he/she   may  not be able  to  condition: Provided. That a) he/she is informed  of the  medical
settle  his accounts   by reason of  financial   incapacity, he/she is consequences  of his/her decisionl  b) helshe  releases those involved
entitled  to reproduction, at  his/her   expense,   the pertinent   part  in his/her care from any obligation relative to the consequences of
or  parts  of the  medical   record  the  purpose   or  purposes   of  his decision; c) hislher decision will not prejudice public health and
which   he shall  indicate  in his/her  written  request  for  safety.
reproduction.   The  patient  shall likewise  be entitled  to  medical 
certifICate, free  of  charge,  with  respect  to  his/her  previous
confinement. No patient shaD be  detained against hi$/her will in any health care
institution on the  sole  basis  of  his failure to  fully  settle  his 
financial  obligations.  However, he/she shall only be allowed to
5. The Right to Choose  Health  Care Provider  and Facility. -  leave the hospital provided appropriate arrangements have been
The patient is free to choose the health care provider to serve  him as made to settle the  unpaid  bills: Provided.  further, That  unpaid 
well as the facility except when he is under the care of a service bills of patients shall be considered as loss income by the hospital
facility or when public health and safety so demands or when the and health care provider/practitioner  and shall be  deducted from
patient expressly waives this right in writing. gross income as income loss only on that particular year.

The patient has the right to discuss his condition with a consultant 10. Right to Refuse Participation In Medical Research. - The
specialist, at the patient's  request and expense.  He also has the  patient has the  right to be advised if the  health care provider  plans
right to seek  for a second opinion and subsequent opinions, if to  involve him in medical research, including but not limited  to 
appropriate, from another health care  provider/practitioner. human  experimentation which may be performed only with the
written informed consent of the patient: Provided, That, an
 6. Right to Self-Determination. - The  patient has the right to avail institutional review board or ethical review board in accordance with
himself/herself of any recommended diagnostic and  treatment  the guidelines set in the Declaration of Helsinki be established for
procedures.Any person of legal age and of sound mind may make an research involving human experimentation:  Provided, further, That
advance written directive for physicians to administer terminal care
 Page |3

the Department of Health shall safeguard the continuing training  OSTRAND, J.:
and  education  of fUture health care provider/practitioner to ensure
the development of the health care delivery in the country: Provided, The defendant is accused of the violation of the Medical Act, the
fUfthermore, That the patient involved in the human information alleging "that on or about the first day of June, 1923,
experimentation  shall be  made aware of the provisions of the and for some time prior to said date, the said accused without having
Declaration of Helsinki and its respective guidelines. obtained from the Board of Medical Examiners the corresponding
certificate of registration for the practice of medicine in the
11. RIght to Correspondence and to Receive Visitors. - The Philippine Islands, voluntarily, illegally and criminally and for
patient has the  right to  communicate  with  relatives and other  compensation, practiced medicine in the City of Manila, Philippine
persons  and to receive visitors subject to reasonable limits Islands, assisting, treating and manipulating the head and body of
prescribed by the rules and regulations of the health care institution. Regino Noble for the purpose of curing him of the ailments,
diseases, pains and physical defects from which he pretended to
12. Right  to  Express Grievances. - The patient has the  right to  suffer, and advertising and offering her services as a physician, by
express complaints and grievances about the care and  services means of cards which she distributed and by letterheads and signs
received  without fear of discrimination or reprisal and to know which she exposed on the door of her office, situated at No. 712
about the disposition of such complaints.Such a system shall afford Calle Asuncion, and in newspapers which are published and
all parties concerned with the opportunity to settle amicably all circulated in the City of Manila, in which cards, letterheads, signs
grievances. and advertising she added and prefixed to her name the letters `Dra.,'
which is the abbreviation of the word `doctor,' for the purpose of
13. RIght to be Informed of His Rights and Obligations as a causing the public to believe that she, the said defendant, had
Patient. - Every person has the right to be  informed of his rights received the corresponding title of doctor."chanrobles virtual law
and obligations as a patient.The Department of Health,in library
coordination with heath  care  providers, professional and civic
groups, the media, health insurance corporations, people's To this information the defendant demurred in the court below on
organizations,local government  organizations,  shall launch and the grounds: (1) That it stated more than one offense, and (2) that it
sustain a nationwide  information and  education  campaign  to  was not drawn in accordance with the form prescribed by law. The
make  known  to  people  their rights  as patients, as declared  in this demurrer was overruled and the defendant pleaded not
Act  Such  rights  and obligations  of patients  shall  be posted in a guilty.chanroblesvirtualawlibrary chanrobles virtual law library
bulletin board conspicuously  placed in a health care institution.
At the trial of the case the defendant made the following admissions:
It shall be the duty of health care institutions to inform of their rights "That on the first of June, 1923, she had no certificate from the
as well as of the institution's rules and regulations that apply to the Board of Medical Examiners authorizing her to practice medicine in
conduct of the patient while in the care of such institution. the Philippine Islands; that on that day she treated and manipulated
the head and body of Regino Noble in order to cure him of ailments
5. REPUBLIC ACT No. 2382THE MEDICAL ACT OF from which he pretended to suffer, the treatment consisting in a
1959ARTICLE IV PENAL AND OTHER PROVISIONS `thrust' by means of the application of the hand to the spinal column;
that she for such treatment received and collected from said Regino
Noble the sum of P1; that the said treatment took place in her office
Section 28. Penalties. Any person found guilty of "illegal practice situated at No. 712 Calle Asuncion, District of Binondo, City of
of medicine" shall be punished by a fine of not less than one Manila, Philippine Islands; that she on or about the first day of June,
thousand pesos nor more than ten thousand pesos with subsidiary 1923, and for some time prior to that date, advertised herself as a
imprisonment in case of insolvency, or by imprisonment of not less `doctor of chiropractic,' in said City of Manila, said advertisement
than one year nor more than five years, or by both such fine and appearing upon her business cards and in the newspaper `El Debate,'
imprisonment, in the discretion of the court. in its issue of April 29, 1923, edited and published in Manila and in
which cards and newspaper advertisement the defendant prefixed the
Section 29. Injunctions. The Board of Medical Examiners may file abbreviation `Dra.' to her name; that she was graduated a doctor in
an action to enjoin any person illegally practicing medicine chiropractic on the 13th day of August, 1919, as evidenced by a
from the performance of any act constituting practice of certificate marked Exhibit I and issued by the American University
medicine if the case so warrants until the necessary certificate School of Chiropractic of Chicago, Illinois."chanrobles virtual law
therefore is secured. Any such person who, after having been so library
enjoined, continues in the illegal practice of medicine shall be
punished for contempt of court. The said injunction shall not relieve Upon this admission and some other evidence to the same effect, the
the person practicing medicine without certificate of registration trial court found the defendant guilty as charged in the information
from criminal prosecution and punishment as provided in the and, in accordance with section 2678 of the Administrative Code,
preceding section. sentenced her to pay a fine of P300, with subsidiary imprisonment in
case of insolvency and to pay the costs. From this judgment the
G.R. No. L-22945 March 3, 1925 defendant appeals to this court and presents four assignments of
error.chanroblesvirtualawlibrary chanrobles virtual law library
THE PEOPLE OF THE PHILIPPINE ISLANDS,
Plaintiff-Appellee, vs. JOVITA V. BUENVIAJE, I. In the first assignment of error counsel contends that the demurrer
to the information should have been sustained on the ground that
 Page |4

said information charged more than one offense. The Medical Law is the courts in other jurisdictions. That the various means of
contained in sections 758 to 783 of the Administrative Code and it is committing the offense is described in more than one section of the
argued that inasmuch as some of the illegal acts with which the statute does not necessarily effect the general principle involved; the
defendant is charged are prohibited by section 770 of the Code and subdivision of a statute into section is merely a matter of
others by section 783, the defendant is in reality accused of two convenience and while it sometimes may be of some aid in
separate and distinct offenses, namely, illegal practice of medicine ascertaining the legislative intent, it is, of course, not conclusive
and illegally representing oneself as a thereof.chanroblesvirtualawlibrary chanrobles virtual law library
doctor.chanroblesvirtualawlibrary chanrobles virtual law library
II. Under the second assignment of error the appellant argues in
We cannot accept this view. It may be noted that the Medical Law substance that chiropractic has nothing to do with medicine and that
itself, as it appears in the Administrative Code, does not declare any
the practice of that profession can therefore not be regarded as
of the therein prohibited acts penal offenses. The penal provisions practice of medicine. There is no merit whatever in this contention.
relating thereto are contained in section 2678 of the Code, which Assuming without conceding that chiropractic does not fall within
reads as follows: the term "practice of medicine" in its ordinary acceptation, we have
the statutory definition contained in section 770 of the
SEC. 2678. Violation of Medical Law. - A person violating any Administrative Code and which clearly includes the manipulations
provision of the Medical Law shall, upon conviction, be punished by employed in chiropractic. The statutory definition necessarily
a fine of not more than three hundred pesos or by imprisonment for prevails over the ordinary one.chanroblesvirtualawlibrary chanrobles
not more than ninety days, or both, in the discretion of the court. virtual law library

The offense here penalized is "violation of the Medical Law." The Under the same assignment of error the defendant also argues that
statute makes no distinction between illegal practice of medicine and the examination prescribed by section 776 of the Administrative
illegally advertising oneself as a doctor. Both are in violation of the Code for admission to the practice of medicine, embraces subjects
Medical Law and carry the same penalty. They are merely different which have no connection with chiropractic and that to require
ways or means of committing the same offense and both of these chiropractors to take that examination is unreasonable and, in effect
means are closely related to each other and usually employed amounts to prohibition of the practice of their profession and
together.chanroblesvirtualawlibrary chanrobles virtual law library therefore violates the constitutional principle that all men have the
right to life, liberty and the pursuit of happiness and are entitled to
In these circumstances and where, as alleged in the information in the equal protection of the law.chanroblesvirtualawlibrary
the present case, the various violations have taken place chanrobles virtual law library
simultaneously, we do not think it was the intention of the legislator
that each single act should be regarded as a separate offense and There is very little force in this argument. The subjects in which an
separate informations presented for each. The language of this court examination is required by section 778 of the Administrative Code,
in the case of United States vs. Poh Chi (20 Phil., 140), in regard to as amended by Act No. 3111, relate to matters of which a thorough
the Opium Law, is opposite to the present case. knowledge seems necessary for the proper diagnosis of diseases of
the human body and it is within the police power of the State to
It is true that the Commission has provided a certain punishment for require that persons who devote themselves to the curing of human
the possession of a pipe used in the smoking of opium, for the ills should possess such knowledge. (State vs. Edmunds, 127 Iowa,
smoking of opium, as well as a punishment for the illegal possession 333; 69 L.R.A., 504; Underwood vs. Scott, 43 Kan., 714; People vs.
of opium, but it is not believed that it was the intention of the Blue Mountain Joe, 129 Ill., 370; State vs. Mylod, 20 R. I., 632; 41
legislature to have separate complaints filed against a person who L.R.A., 428; Stewart vs. Raab, 55 Minn., 20; Matthei vs. Wooley, 69
was found in the illegal possession of opium and a pipe at the same Ill. App., 654; State vs. Buswell, 40 Neb., 158; 24 L.R.A., 68;
time. If that were true then every person who was found to be O'Connor vs. State, 46 Neb., 157; U. S. vs. Gomez Jesus, 31 Phil.,
smoking opium could be charged in three different complaints: First, 218.)chanrobles virtual law library
with the illegal possession of the pipe; second, the illegal possession
of the opium; and third, for smoking the opium. Certainly the III. The third assignment of error is closely related to the foregoing.
legislature did not intend any such consequences. The appellant contends that the prohibition in section 783 against the
unauthorized use of the title "doctor" must be understood to refer to
In the case of United States vs. Douglass (2 Phil., 461), the court "Doctor of Medicine" and has no application to doctors of
said: chiropractic. Under different circumstances that might possibly be
so, but where, as here, chiropractic is by statute made a form of the
practice of medicine, it necessarily follows that a person holding
It is not objectionable, when a single offense may be committed by himself out as a doctor of chiropractic in legal effect represents
the use of different means, to charge, in the alternative, the various himself as a doctor of medicine.chanroblesvirtualawlibrary
means by which the crime may have been committed. (U.S. vs. chanrobles virtual law library
Potter, 27 Fed. Cases, 604; Bishop's New Criminal Procedure, sec.
434.)
IV. In her fourth assignment of error the appellant attacks the
constitutionality of Act No. 3111, amending section 770 of the
The same rule was followed in the case of United States vs. Dorr (2 Administrative Code, on the ground that the subject of the Act is not
Phil., 332); United States vs. Tolentino (5 Phil., 682); and United sufficiently expressed in its title and that it embraces more than one
States vs. Gustilo (19 Phil., 208) and is in harmony with the views of
 Page |5

subject. There is no merit in this contention. The title of Act No. Carlos, province of Negros Occidental, Philippines, and
3111 reads as follows: within the jurisdiction of this Honorable Court, the herein
accused, without being duly licensed to practice medicine
An Act to amend sections seven hundred and fifty-nine, seven and with reckless negligence and without taking due
hundred and sixty, seven hundred and sixty-one, seven hundred and precaution, did, then and there, wilfully, unlawfully, and
sixty-two, seven hundred and sixty-five, seven hundred and sixty- feloniosly diagnose, prescribe, and treat one Susana Tam,
seven, seven hundred and seventy, seven hundred and seventy-four, who had been suffering for sometime with bodily ailment,
seven hundred and seventy-five, seven hundred and seventy-six, knowing fully well that she is incompetent and not
seven hundred and seventy-eight, seven hundred and eighty, seven possessing the necessary technical or scientific knowledge
hundred and eighty-two, seven hundred and eighty-three, and or skill, and as a consequence of such negligence and
twenty-six hundred and seventy-eight of Act Numbered Twenty- carelessness and lack of medical skill, said Susana Tam
seven hundred and eleven, known as the Administrative Code, died thereafter.
increasing the number of the members of the Board of Medical
Examiners, conferring upon the same certain additional powers and The accused pleaded not guilty to the information.
responsibilities and for other purposes.
When the case was called for trial, the assistant fiscal made a
All of the sections enumerated in the title quoted relate to the same manifestation that the accused had also been charged with the crime
general subject, namely, defining and regulating the practice of of illegal practice of medicine before another sala of the same court.
medicine, and section 770 is expressly mentioned as one of the In view of this manifestation, the trial court motu proprio dismissed
sections amended.chanroblesvirtualawlibrary chanrobles virtual law the information for being fatally defective, without prejudice to the
library filing of the proper information against the same accused. The
grounds given for the dismissal were the following:
This is sufficient. Under constitutional provisions similar to ours the
general rule is that a title which declares the amendatory statute to be In view of the foregoing manifestation of the Fiscal, the
an act to amend a designated section or the like of a specified Code Court finds that the information is fatally defective and,
is sufficient and the precise nature of the amendatory Act need not therefore, should be dismissed under Par. (a), Sec. 2 of Rule
be further stated. (Ross vs. Aguirre, 191 U.S., 60; Udell vs. Citizens 113 of the Rules of Court inasmuch as the facts charged do
Street R. Co., 152 Ind., 507; McGuire vs. Chicago, etc., R. Co., 131 not constitute the offense of homicide thru reckless
Iowa, 340; Lankford vs. County Commissioners of Somerset imprudence because illegal practice of medicine is
County, 73 Md., 105; Tabor vs. State, 34 Tex. Crim., 631; Com. vs. malicious per se, and when the accused practiced medicine
Brown, 91 Va., 762.) For a full and authoritative discussion of this without academical preparation and without a license to do
subject, see Note to Lewis vs. Dunne, 55 L.R.A., 833. See also so, then she is per se committing a criminal act for which
Government of the Philippine Islands vs. Municipality of Binalonan the criminal intent is presumed. Although the crime of
and Roman Catholic Bishop of Nueva Segovia (32 Phil., 634) and homicide thru reckless imprudence can be committed by a
Yu Cong Eng vs. Trinidad (p. 385, ante).chanroblesvirtualawlibrary duly licensed physician when in the practice of his
chanrobles virtual law library We find no error in the judgment profession he fails to exercise due care and diligence from
appealed from and the same is therefore affirmed, with the costs which the criminal act arises, this crime cannot be imputed
against the appellant. So ordered. to a person who has no authority to practice this profession,
which act is malicious per se. The crime described in
Separate Opinions ROMUALDEZ, J., dissenting:chanrobles Article 365 of the Revised Penal Code results from the
virtual law library I believe that the complaint charges more than one performance of a lawful act which was done without
offense, and that the demurrer interposed on that ground should have exercising the care and diligence that is required by the
been sustained. For that reason, I dissent from the opinion of the circumstances, and not from the performance of an
majority. unlawful act which is the subject of the information in this
case because a quack doctor who practices medicine does
so against the law, and, therefore, his act is necessarily
G.R. No. L-14160   June 30, 1960 PEOPLE OF THE malicious and criminal.
PHILIPPINES, plaintiff-appellant,
vs. ANUNCIACION VDA. DE GOLEZ, defendant- From the above order, the provincial fiscal appealed to this Court,
appellee. and, through the Solicitor General, urges that the court below erred
in dismissing the information for being fatally defective because the
REYES, J. B. L., J.: facts charged therein allegedly do not constitute the crime of
homicide thru reckless imprudence.
On October 2, 1957, the provincial fiscal of Negros Occidental filed
an information in the Court of First Instance of that province We agree with appellant that the order of dismissal is erroneous, in
charging Anunciacion Vda. de Golez with the crime of homicide that the crime of illegal practice of medicine is a statutory offense
through reckless imprudence, as follows: wherein criminal intent is taken for granted, so that a person may be
convicted thereof irrespective of his intention and in spite of his
That on or about the period comprised from December 12, having acted in good faith and without malice; i.e., even if he was
1956 to December 24, 1956, in the municipality of San not motivated by an evil desire to injure or hurt another, but by an
honest desire to cure or alleviate the pain of a patient. In fact, as
 Page |6

defined by Section 2678 of the Revised Administrative Code (the ARTICLE II

law then in force), the offense consists in the mere act of practicing The Board of Medical Education Its Functions
medicine in violation of the Medical Law, even if no injury to
another, much less death, results from such malpractice. When, Section 3. Composition of Board of Medical Education. The Board
therefore, the patient dies, the illegal practitioner should be equally of Medical Education shall be composed of the Secretary of
responsible for the death of his patient, an offense independent of Education or his duly authorized representative, as chairman, and the
and distinct from the illegal practice of medicine. Secretary of Health or his duly authorized representative, the
Director of the Bureau of Private Schools or his duly authorized
The allegations in the information in this case that the accused acted representative, the chairman of the Board of Medical Examiners or
with reckless negligence in diagnosing, prescribing for, and treating his duly authorized representative, a representative of private
the deceased Susana Tam, knowing that she did not possess the practitioners, upon recommendation of an acknowledged medical
necessary technical knowledge or skill to do so, thus causing her association and a representative chosen by the Philippine
death, sufficiently charge the crime of homicide through reckless Association of Colleges and Universities, as members.
imprudence, since ordinary diligence counsels one not to tamper
with human life by trying to treat a sick man when he knows that he The officials acting as chairman and members of the Board of
does not have the special skill, knowledge, and competence to Medical Education shall hold office during their incumbency in their
attempt such treatment and cure, and may consequently reasonably respective positions.
foresee harm or injury to the latter, said accused was found guilty
and convicted by this Court of physical injuries through imprudence Section 4. Compensation and traveling expenses. The chairman and
under the old Penal Code (U. S. vs. Feliciano Divino, 12 Phil., 175). members of the Board of Medical Education shall not be entitled to
any compensation except for traveling expenses in connection with
However, in view of the error of the lower court in dismissing the their official duties as herein provided.
information, we cannot sustain this appeal for the reason that it
would place the accused in double jeopardy. The present information For administrative purposes, the Board shall hold office in the office
being valid and sufficient in form and substance to sustain a of its chairman, who may designate a ranking official in the
conviction, the dismissal thereof by the court after the accused had Department of Education to serve as secretary of the Board.
pleaded not guilty to the charge and without his consent constitutes
jeopardy as to bar further proceedings upon the case (U. S vs. Yam
Tung Way, 21 Phil., 67; People vs. Hernandez, 94 Phil., 49; 49 Off. Section 5. Functions. The functions of the Board of Medical
Gaz. No. 12, 5342; People vs. Ferrer, 100 Phil., 124; 55 Off. Gaz. [4] Education shall be:
620). The failure of the accused to file a brief and raise the question
of double jeopardy in this appeal does not mean that section 2, Rule (a) To determine and prescribe minimum requirements for
118, providing that the People can not appeal if the defendant would admission into a recognized college of medicine;
be placed in double jeopardy would no longer apply (People vs. Bao,
106 Phil., 243; 56 Off. Gaz. [51] 7768). (b) To determine and prescribe requirements for minimum
physical facilities of colleges of medicine, to wit: buildings,
The unfortunate result in this case could have been avoided if the including hospitals, equipment and supplies, apparatus,
trial court had proceeded more deliberately, without allowing its instruments, appliances, laboratories, bed capacity for
judgment to be influenced by preconceived notions or undue haste in instruction purposes, operating and delivery rooms,
dispatching cases. The appeal is, therefore, dismissed, with costs facilities for out-patient services, and others, used for
de oficio. didactic and practical instructions in accordance with
modern trends;
6. REPUBLIC ACT No. 2382
(c) To determine and prescribe the minimum number and
the minimum qualifications of teaching personnel,
THE MEDICAL ACT OF 1959 including student-teacher ratio and curriculum;

ARTICLE I (d) To determine and prescribe the number of students who

Objectives and Implementation should be allowed to take up the preparatory course taking
into account the capacity of the different recognized
Section 1. Objectives. This Act provides for and shall govern (a) the colleges of medicine.
standardization and regulation of medical education; (b) the
examination for registration of physicians; and (c) the supervision, (e) To select, determine and approve hospitals or some
control and regulation of the practice of medicine in the Philippines. departments of the hospitals for training which comply with
the minimum specific physical facilities as provided in
Section 2. Enforcement. For the purpose of implementing the subparagraph (b) hereof: and
provisions of this Act, there are created the following agencies: the
Board of Medical Education under the Department of Education, and (f) To promulgate and prescribe and enforce necessary rules
the Board of Medical Examiners under the Commissioner of Civil and regulations for the proper implementation of the
Service. foregoing functions.
 Page |7

Section 6. Minimum required courses. Students seeking admission Biochemistry and Nutrition
to the medical course must have a bachelor of science or bachelor of
arts degree or their equivalent and must have taken in four years the Pharmacology
following subjects with their corresponding number of units:
Microbiology
Unit
English 12 Parasitology

Latin 3 Medicine and Therapeutics

Mathematics, including Accounting
9
and Statistics Genycology
Philosophy, including Psychology
12 Opthalmology, Otology, Rhinology and Laryngology
and Logic
Zoology and Botany 15 Pediatrics
Physics 8
Chemistry 21 Obstetrics

Library Science 1 Surgery

Humanities and Social Sciences 12
Preventive Medicine and Public Health
Twelve units of Spanish shall be required pursuant to Republic Act
Numbered Seven hundred nine; but commencing with the academic Legal Medicine, including Medical Jurisprudence and
year nineteen hundred sixty to nineteen hundred sixty-one, twenty- Ethics.
four units of Spanish shall be required pursuant to Republic Act
Numbered Eighteen hundred and eighty-one as cultural, social and Section 7. Admission requirements. The medical college may admit
nationalistic studies. any student to its first year class who has not been convicted by any
court of competent jurisdiction of any offense involving moral
Provided, That the following students may be permitted to complete turpitude, and who presents (a) a certificate showing completion of a
the aforesaid preparatory medical course in shorter periods as standard high school course, (b) a record showing completion of a
follows: standard preparatory medical course as herein provided, (c) a
certificate of registration as medical student, (d) a certificate of good
moral character issued by two former professors in the pre-medicine
(a) Students whose general average is below eighty-five per
course, and (e) birth certificate and marriage certificate, if any.
cent but without any grade of failure or condition may be
Nothing in this Act shall be construed to inhibit any college of
allowed to pursue and finish the course in three academic
medicine from establishing, in addition to the preceding, other
years and the intervening summer sessions; and
entrance requirements that may be deemed admissible.
(b) Students whose general average is eighty-five per cent
For the purposes of this Act, the term "College of Medicine" shall
or over may be permitted to finish the course in three
mean to include faculty of medicine, institute of medicine, school of
academic years by allowing them to take each semester the
medicine or other similar institution offering a complete medical
overload permitted to bright students under existing
course leading to the degree of Doctor of Medicine or its equivalent.
regulations of the Bureau of Private Schools.
Every college of medicine must keep a complete record of
Provided, That upon failure to maintain the general average of
enrollment, grades and turnover, and must publish each year a
eighty-five per cent, students under (b) shall automatically revert to
catalogue giving the following information:
the category of students under (a) and those under (a), upon having
any grade of failure or condition, shall automatically revert to the
category of students required to pursue the preparatory course in 1. Date of publication
four years mentioned above.
2. Calendar for the academic year
The medical course shall be at least five years, including not less
than eleven rotating internship in an approved hospital, and shall 3. Faculty roll indicating whether on full time part time
consist of the following subjects: basis

Anatomy 4. Requirements of admission

Physiology 5. Grading system

 Page |8

6. Requirements for promotion physical, mental or physical condition; or (c) who shall use the title
M.D. after his name.
7. Requirements for graduation
Section 11. Exemptions. The preceding section shall not be
8. Medical hours per academic year by departments construed to affect (a) any medical student duly enrolled in an
approved medical college or school under training, serving without
9. Schedule hours per academic year by departments any professional fee in any government or private hospital, provided
that he renders such service under the direct supervision and control
of a registered physician; (b) any legally registered dentist engaged
10. Number of students enrolled in each class. exclusively in the practice of dentistry; (c) any duly registered
masseur or physiotherapist, provided that he applies massage or
ARTICLE III other physical means upon written order or prescription of a duly
THE BOARD OF MEDICAL EXAMINERS; REGISTRATION registered physician, or provided that such application of massage or
OF PHYSICIANS physical means shall be limited to physical or muscular
development; (d) any duly registered optometrist who mechanically
Section 8. Prerequisite to the practice of medicine. No person shall fits or sells lenses, artificial eyes, limbs or other similar appliances or
engage in the practice of medicine in the Philippines unless he is at who is engaged in the mechanical examination of eyes for the
least twenty-one years of age, has satisfactorily passed the purpose of constructing or adjusting eye glasses, spectacles and
corresponding Board Examination, and is a holder of a valid lenses; (e) any person who renders any service gratuitously in cases
Certificate of Registration duly issued to him by the Board of of emergency, or in places where the services of a duly registered
Medical Examiners. physician, nurse or midwife are not available; (f) any person who
administers or recommends any household remedy as per
Section 9. Candidates for board examination. Candidates for Board classification of existing Pharmacy Laws; and (g) any psychologist
examinations shall have the following qualifications: or mental hygienist in the performance of his duties, provided such
performance is done in conjunction with a duly registered physician.
(1) He shall be a citizen of the Philippines or a citizen of
any foreign country who has submitted competent and Section 12. Limited practice without any certificate of registration.
conclusive documentary evidence, confirmed by the Certificates of registration shall not be required of the following
Department of Foreign Affairs, showing that his country's persons:
existing laws permit citizens of the Philippines to practice
medicine under the same rules and regulations governing (a) Physicians and surgeons from other countries called in
citizens thereof; consultation only and exclusively in specific and definite
cases, or those attached to international bodies or
(2) He shall be of good moral character, showing for this organization assigned to perform certain definite work in
purpose certificate of civil status; the Philippines provided they shall limit their practice to the
specific work assigned to them and provided further they
shall secure a previous authorization from the Board of
(3) He shall be of sound mind;
Medical Examiners.
(4) He shall not have been convicted by a court of
(b) Commissioned medical officers of the United States
competent jurisdiction of any offense involving moral
armed forces stationed in the Philippines while rendering
turpitude; and
service as such only for the members of the said armed
forces and within the limit of their own respective territorial
(5) He shall be a holder of the degree of Doctor of jurisdiction.
Medicine or its equivalent, conferred by a college of
medicine duly recognized by the Department of Education.
(c) Foreign physicians employed as exchange professors in
special branches of medicine or surgery whose service may
Section 10. Acts constituting practice of medicine. A person shall be in the discretion of the Board of Medical Education, be
considered as engaged in the practice of medicine (a) who shall, for necessary.
compensation, fee, salary or reward in any form, paid to him directly
or through another, or even without the same, physical examine any
(d) Medical students who have completed the first four
person, and diagnose, treat, operate or prescribe any remedy for any
years of medical course, graduates of medicine and
human disease, injury, deformity, physical, mental or physical
registered nurses who may be given limited and special
condition or any ailment, real or imaginary, regardless of the nature
authorization by the Secretary of Health to render medical
of the remedy or treatment administered, prescribed or
services during epidemics or national emergencies
recommended; or (b) who shall, by means of signs, cards,
whenever the services of duly registered physicians are not
advertisements, written or printed matter, or through the radio,
available. Such authorization shall automatically cease
television or any other means of communication, either offer or
when the epidemic or national emergency is declared
undertake by any means or method to diagnose, treat, operate or
terminated by the Secretary of Health.
prescribe any remedy for any human disease, injury, deformity,
 Page |9

Section 13. The Board of Medical Examiners, its composition and keep all the records, including examination papers, and the minutes
duties. The Board of Medical Examiners shall be composed of six of the deliberations of the Board. He shall also keep a register of all
members to be appointed by the President of the Philippines from a persons to whom certificates of registration has been granted; set
confidential list of not more than twelve names approved and forth the name, sec, age, and place of birth of each, place of
submitted by the executive council of the Philippine Medical business, post office address, the name of the medical college or
Association, after due consultation with other medical associations, university from which he graduated or in which he had studied,
during the months of April and October of each year. The chairman together with time spent in the study of the profession elsewhere, the
of the Board shall be elected from among themselves by the member name of the country where the institution is located which had
at a meeting called for the purpose. The President of the Philippines granted to him the degree or certificate of attendance upon clinic and
shall fill any vacancy that may occur during any examination from all lectures in medicine and surgery, and all other degrees granted to
the list of names submitted by the Philippine Medical Association in him from institutions of learning. He shall keep an up-to-date
accordance with the provisions of this Act. registration book of all duly registered physicians in the Philippines.
He shall furnish copies of all examination questions and ratings in
No examiner shall handle the examinations in more than four each subject of the respective candidates in the physicians
subjects or groups of subjects as hereinafter provided. The examination, one month after the release of the list of successful
distribution of subject to each member shall be agreed upon at a examinees, to the deans of the different colleges of medicine
meeting called by the chairman for the purpose. The examination exclusively for the information and guidance of the faculties thereof.
papers shall be under the custody of the Commissioner of Civil This report shall be considered as restricted information. Any school
Service or his duly authorized representative, and shall be distributed which violates this rule shall be deprived of such privilege. The
to each member of the Board who shall correct, grade, and sign, and secretary of the Board shall likewise keep a record of all registered
submit them to the said Commissioner within one hundred twenty medical students. He shall keep all the records and proceedings, and
days from the date of the termination of the examinations. issue and receive all papers in connection with any and all
complaints presented to the Board.
A final meeting of the Board for the deliberation and approval of the
grades shall be called by the Commissioner of Civil Service Section 17. Rules and regulations. The Board of Medical
immediately after receipt of the records from the members of the Examiners, with the approval of the Commissioner of Civil Service,
Board of Medical Examiners. The secretary of the Board shall shall promulgate such rules and regulations as may be necessary for
submit to the President of the Philippines for approval the names of the proper conduct of the examinations, correction of examination
the successful candidates as having been duly qualified for licensure papers, and registration of physicians. The Commissioner shall
in alphabetical order, without stating the ratings obtained by each. supervise each Board examination and enforce the said rules and
regulations. These rules and regulations shall take effect fifteen days
Section 14. Qualifications of examiners. No person shall be after the date of their publication in the Official Gazette and shall not
appointed a member of the Board of Medical Examiners unless he or be changed within sixty days immediately before any examination.
she (1) is a natural-born citizen of the Philippines, (2) is a duly Such rules and regulations shall be printed and distributed for the
registered physician in the Philippines, (3) has been in the practice of information and guidance of all concerned.
medicine for at least ten years, (4) is of good moral character and of
recognized standing in the medical profession, (5) is not a member Section 18. Dates of examinations. The Board of Medical Examiners
of the faculty of any medical school and has no pecuniary interest, shall give examinations for the registration of physicians, one in
directly or indirectly, in any college of medicine or in any institution May and one in November every year, in the City of Manila or any
where any branch of medicine is taught, at the time of his of its suburbs after giving not less than ten days' notice to each
appointment: Provided, That of the six members to be appointed, not candidate who had filed his name and address with the secretary of
more than two shall be graduates of the same institution and not the Board.
more than three shall be government physicians.
Section 19. Fees. The secretary of the Board, under the supervision
Section 15. Tenure of office and compensation of members. The of the Commissioner of Civil Service, shall collect from each
members of the Board of Medical Examiners shall hold office for candidate the following fees:
one year: Provided, That any member may be reappointed for not
more than one year. Each member shall receive as compensation ten P
pesos for each candidate examined for registration as physician, and For registration as medical student
5.00
five pesos for each candidate examined in the preliminary or final
physician examination. For complete physician
75.00
examination
The President of the Philippines, upon the recommendation of the For preliminary or final
Commissioner of Civil Service , after due investigation, may remove 40.00
examination
any member of the Board of Medical Examiners for neglect of duty,
incompetency, or unprofessional or dishonorable conduct. For registration as physician 20.00

Section 16. Executive Officer and Secretary of the Board. The All fees paid as provided herein shall accrue to the funds of the
Secretary of the Boards of Examiners appointed in accordance with Board of Medical Examiners and be expended for the payment of the
section ten of Act Numbered Four thousand seven, as amended, shall compensation of the members thereof. No fees other than those
also be the secretary of the Board of Medical Examiners, who shall provided herein shall be paid to the Board.
 P a g e | 10

Section 20. Issuance of Certificate of Registration, grounds for duces tecum witnesses for all purposes required in the discharge of
refusal of same. The Commissioner of Civil Service and the its duties; and (5) to promulgate, with the approval of the
secretary of the Board of Medical Examiners shall sign jointly and Commissioner of Civil Service, such rules and regulations as it may
issue certificates of registration to those who have satisfactorily deem necessary for the performance of its duties in harmony with
complied with the requirements of the Board. They shall not issue a the provisions of this Act and necessary for the proper practice of
certificate of registration to any candidate who has been convicted medicine in the Philippines.
by a court of competent jurisdiction of any criminal offense
involving moral turpitude, or has been found guilty of immoral or Administrative investigations may be conducted by not less than
dishonorable conduct after he due investigation by the Board of four members of the Board of Medical Examiners; otherwise the
Medical Examiners, or has been declared to be of unsound mind. proceedings shall be considered void. The existing rules of evidence
shall be observed during all administrative investigations. The Board
Section 21. Scope of examination. The examination for the may disapprove applications for examination or registration,
registration of physicians shall consist of the following subjects: (1) reprimand erring physicians, or suspend or revoke registration
Anatomy and Histology, (2) Physiology, (3) Biochemistry, (4) certificates, if the respondents are found guilty after due
Microbiology and Parasitology, (5) Pharcology and Therapeutics, (6) investigations.
Pathology, (7) Medicine, (8) Obstetrics and Gynecology, (9)
Pediatrics and Nutrition, (10) Surgery and Opthalmology, Section 23. Procedure and rules. Within five days after the filling of
Otolaryngology and Rhinology, (11) Preventive Medicine and written charges under oath, the respondent physician shall be
Public Health, and (12) Legal Medicine, Ethics and Medical furnished a copy thereof, without requiring him or her to answer the
Jurisprudence: Provided, however, That the examination questions in same, and the Board shall conduct the investigation within five days
each subject or group of subject shall at least be ten in number: after the receipt of such copy by the respondent. The investigation
Provided, further, That the examination questions in Medicine shall shall be completed as soon as practicable.
include at least three from the following branches: Infectious
diseases, Neurology, Dermatology, Allergy, Endocrinology and Section 24. Grounds for reprimand, suspension or revocation of
Cardio-Vascular diseases: Provided, finally, That the examination registration certificate. Any of the following shall be sufficient
questions in Surgery shall include at least four questions from the ground for reprimanding a physician, or for suspending or revoking
following: Opthalmology, Otology, Rhinology, Laryngology, a certificate of registration as physician:
Orthopedic Surgery and Anesthesiology.
(1) Conviction by a court of competent jurisdiction of any
The questions shall be the same for all applicants. All answers must criminal offense involving moral turpitude;
be written either in English or Spanish. No name of the examinee
shall appear in the examination paper but the examiners shall devise
a system whereby each applicant can be identified by number only. (2) Immoral or dishonorable conduct;

In order that a candidate may be deemed to have passed his (3) Insanity;
examination successfully he must have obtained a general average of
seventy-five per cent without a grade lower than sixty-five per cent (4) Fraud in the acquisition of the certificate of registration;
in Medicine, Pediatrics and Nutrition, Obstetrics and Gynecology,
and Preventive Medicine and Public Health, and no grade lower than (5) Gross negligence, ignorance or incompetence in the
fifty per cent in the rest of the subjects. practice of his or her profession resulting in an injury to or
death of the patient;
The preliminary examinations shall comprise of the following
subjects: (6) Addiction to alcoholic beverages or to any habit
forming drug rendering him or her incompetent to practice
(1) Gross Anatomy and Histology his or her profession, or to any form of gambling;

(2) Physiology (7) False or extravagant or unethical advertisements

wherein other things than his name, profession, limitation
(3) Biochemistry of practice, clinic hours, office and home address, are
mentioned.
(4) Microbiology and Parasitology
(8) Performance of or aiding in any criminal abortion;
Section 22. Administrative investigations. In addition to the
functions provided for in the preceding sections, the Board of (9) Knowingly issuing any false medical certificate;
Medical Examiners shall perform the following duties: (1) to
administer oath to physicians who qualified in the examination; (2) (10) Issuing any statement or spreading any news or rumor
to study the conditions affecting the practice of medicine in all parts which is derogatory to the character and reputation of
of the Philippines; (3) to exercise the powers conferred upon it by another physician without justifiable motive;
this article with the view of maintaining the ethical and professional
standards of the medical profession; (4) to subpoena or subpoena
 P a g e | 11

(11) Aiding or acting as a dummy of an unqualified or Section 32. Effectivity. This Act shall take effect upon its approval:
unregistered person to practice medicine; Provided, That if it is approved during the time when examinations
for physicians are held, it shall take effect immediately after the said
(12) Violation of any provision of the Code of Ethics as examinations: Provided, further, That section six of this Act shall
approved by the Philippine Medical Association. take effect at the beginning of the academic year nineteen hundred
sixty to nineteen hundred sixty-one, and the first paragraph of
Refusal of a physician to attend a patient in danger of death is not a section seven shall take effect four years thereafter.
sufficient ground for revocation or suspension of his registration
certificate if there is a risk to the physician's life. Approved: June 20, 1959

Section 25. Rights of respondents. The respondent physician shall be G.R. No. L-25135             September 21,
entitled to be represented by counsel or be heard by himself or 1968PHILIPPINE MEDICAL ASSOCIATION,
herself, to have a speedy and public hearing, to confront and to petitioner,vs.BOARD OF MEDICAL EXAMINERS and
cross-examine witnesses against him or her, and to all other rights JOSE MA. TORRES, respondents.
guaranteed by the Constitution and provided for in the Rules of
Court.
CONCEPCION, C.J.:Original action for certiorari and mandamus,
against the Board of Medical Examiners and Jose Ma. Torres, to
Section 26. Appeal from judgment. The decision of the Board of annul a resolution of the former and a certificate issued by the same
Medical Examiners shall automatically become final thirty days after authorizing the latter to practice medicine in the Philippines without
the date of its promulgation unless the respondent, during the same examination.
period, has appealed to the Commissioner of Civil Service and later
to the Office of the President of the Philippines. If the final decision
is not satisfactory, the respondent may ask for a review of the case, The facts are not disputed. Jose Ma. Torres — hereinafter referred to
or may file in court a petition for certiorari. as respondent — is a Spanish subject and a member of the
Missionary Sons of the Immaculate Heart of Mary, otherwise known
as the Claretian Missionaries. Having graduated from the University
Section 27. Reinstatement. After two years, the Board may order the of Barcelona, Spain, with the degree of Licentiate in Medicine and
reinstatement of any physicians whose certificate of registration has Surgery, he is entitled, under the laws of Spain, to practice medicine
been revoked, if the respondent has acted in an exemplary manner in and surgery throughout the territory thereof.
the community wherein he resides and has not committed any
illegal, immoral or dishonorable act.
On January 21, 1955, respondent was granted special authority to
practice medicine in Lamitan, Basilan City, where he resides,
ARTICLE IV pursuant to Section 771(e) of the Revised Administrative Code
PENAL AND OTHER PROVISIONS reading:

Section 28. Penalties. Any person found guilty of "illegal practice of SEC. 771. Persons exempt from registration. —
medicine" shall be punished by a fine of not less than one thousand Registration shall not be required of the following classes
pesos nor more than ten thousand pesos with subsidiary of persons: . . .
imprisonment in case of insolvency, or by imprisonment of not less
than one year nor more than five years, or by both such fine and
imprisonment, in the discretion of the court. (e) In cases of epidemic or in municipalities where there is
no legally qualified practicing physician, or when the
circumstances require it, in the interest of the public health,
Section 29. Injunctions. The Board of Medical Examiners may file the Director of Health may issue special authorizations, to
an action to enjoin any person illegally practicing medicine from the all medical students who have completed the first three
performance of any act constituting practice of medicine if the case years of their studies, or to persons who have qualified in
so warrants until the necessary certificate therefore is secured. Any medicine, and to graduate or registered nurses, who may
such person who, after having been so enjoined, continues in the request it.
illegal practice of medicine shall be punished for contempt of court.
The said injunction shall not relieve the person practicing medicine
without certificate of registration from criminal prosecution and This authority was revoked, on November 8, 1960, by the then
punishment as provided in the preceding section. Secretary of Health, upon the ground that "the conditions under
which it was granted no longer obtained in Lamitan Basilan City,
there being enough practising physicians in that locality." Said
Section 30. Appropriation. To carry out the provisions of this Act, officer restored the authority on December 19, 1960, to be revoked
there is hereby appropriated, out of any funds in the National again, on January 22, 1963. It was renewed once more, on
Treasury not otherwise appropriated, the sum of twenty thousand September 1, 1963, and, once again, it was revoked on February 10,
pesos. 1964, upon the recommendation of the Board of Medical Examiners
— hereinafter referred to as the Board. On motion for
Section 31. Repealing clause. All Acts, executive orders, reconsideration filed by respondent, the Board issued, on April 6,
administrative orders, rules and regulations, or parts thereof 1965, its Resolution No. 25, series of 1965, which was approved by
inconsistent with the provisions of this Act are repealed or modified the President, granting respondent a certificate to practice medicine
accordingly. in the Philippines without the examination required in Republic Act
 P a g e | 12

No. 2882, otherwise known as the Medical Act of 1959. The cases were commenced by individuals, who, as such, had no special
resolution relied therefor upon The Treaty on the Validity of interest in the relief therein prayed for. Indeed, in the Almario case it
Academic Degrees and The Exercise of the Professions between the was intimated that the result might have been otherwise had it been
Republic of the Philippines and the Spanish State, signed at Manila brought by an "association" whose members have an interest in the
on March 4, 1949, and ratified on May 19, 1949. 1 subject matter of the action.

Petitioner herein, Philippine Medical Association, is a domestic This was confirmed by PHILCONSA vs. Gimenez,5 in which we
corporation. On June 14, 1965, it addressed the Chairman of the sustained the right of the Philippine Constitution Association to
Board a communication requesting reconsideration of said resolution assail the constitutionality of Republic Act No. 3836, insofar as it
No. 25, upon the ground that, pursuant to said Medical Act of 1959, allowed retirement gratuity and commutation of vacation and sick
respondent has to take and pass the examination therein prescribed, leave to members of Congress and to elective officials thereof.
before he can be allowed to practice medicine in the Philippines. Further authority in favor of petitioner herein is supplied by
This letter was followed by another, dated October 6, 1965, to which Nacionalista Party vs. F. Bautista Angelo 6 in which the Nacionalista
said Chairman replied on October 8, 1965, stating "that the final Party successfully impugned the validity of the designation of the
decision on the matter will have to come from the President of the then Solicitor General as Acting Member of the Commission on
Philippines upon whose authority said resolution has been finally Elections.
approved and implemented."
It is our considered opinion that the view adopted in the last three (3)
Thereupon, or, on October 18, 1965, petitioner commenced the cases should be maintained and that, in line therewith, petitioner
present action, for the purpose stated at the beginning of this herein has sufficient interest to prosecute the case at bar and a cause
decision, upon the theory that the Board had violated Republic Act of action against respondents herein.
No. 2882 in granting respondent's certificate for the general practice
of medicine in the Philippines without the examination prescribed in As regards their objection based upon petitioner's failure to appeal to
said Act; that the Board had exceeded its authority in passing said the President, suffice it to say that the rule requiring exhaustion of
Resolution, because of which the same is null and void; that the administrative remedies is concededly subject to exceptions, among
Board should, therefore, be ordered to cancel the certificate issued in which are cases involving only questions of law or when jurisdiction
pursuance of said resolution; and that petitioner has no other plain, is in issue7or the action complained of bears the approval of a
adequate and speedy remedy in the ordinary course of law. department secretary, as the disputed resolution, which was
approved by the Executive Secretary "by authority of the President,"
In their respective answers, respondents admit the basic facts, but or as an alter ego of the Executive. 8 The case at bar falls under these
not the conclusions drawn therefrom by the petitioner and allege that exceptions to said rule.1awphîl.nèt
the resolution in question is sanctioned by the provisions of the
Treaty above referred to; that petitioner has no cause of action; and The main issue herein hinges on the interpretation of Article I of the
that the petition should be dismissed for failure of the petitioner to Treaty aforementioned, reading as follows:
exhaust the available administrative remedies.
The nationals of both countries who shall have obtained
Respondents cite the cases of Costas vs. Aldanese2 and Almario vs. degrees or diplomas to practice the liberal professions in
City Mayor 3 in support of the theory that petitioner herein has no either of the Contracting States, issued by competent
sufficient interest or "personality" to maintain the present case. In national authorities, shall be deemed competent to exercise
the first case, it was held that the President of the Association of said professions in the territory of the Other, subject to the
Philippine (Marine) Engineers4 had no particular "individual" laws and regulations of the latter. When the degree or
interest, and, hence,no cause of action for mandamus to compel the diploma of Bachelor, issued by competent national
Collector of Customs to implement section 1203(j) of the authorities allows its holder without requiring further
Administrative Code, providing that steamers making round trips of evidence of proficiency to pursue normally higher courses
more than 48 hours or travelling at night shall carry the complement of study, he shall also be deemed qualified to continue his
of marine engineers therein specified. In the second case, a citizen of studies in the territory of either Party in conformity with the
the Philippines, as such, who is not an Applicant for any stall or applicable laws and regulations of the State which
booth, or the representative of any such applicant, stallholder or any recognizes the validity of the title or diploma in question,
association of persons who are deprived of the right to occupy stalls and with the rules and regulations of the particular
in said market, "is not the real party in interest who has the capacity, educational institution in which he intends to pursue his
right or personality" to bring an action for mandamus, to compel the studies.
office of Pasay City to comply with the provisions of Republic Act
No. 37, by ejecting, from the public market of said City, stallholders This Treaty provision was the subject matter of our resolution of
who are not nationals of the Philippines. August 15, 1961, in connection with the petition of Arturo Efren
Garcia for admission to the Philippine Bar without taking the Bar
Said cases are not in point. To begin with, both are actions for Examinations. After completing, in Spain, the course prescribed
mandamus, whereas the case at bar is mainly one for certiorari. therefor, Garcia had been graduated from the College of Law of the
Although, petitioner herein, likewise, seeks a writ of mandamus, Universidad Central de Madrid with the degree of "Licenciado en
directing the Board to cancel the certificate of registration issued to Derecho", which entitled him to practice law in Spain. Having
the respondent, this would be a necessary consequence of the writ of invoked the provisions of said treaty in support of his claim of
certiorari annulling the disputed resolution. Moreover, said two (2) exemption from the requisite bar examinations, this Court denied his
 P a g e | 13

petition upon the ground, among others ". . . that the privileges Section 2. Statement of Policy – The State recognizes the important role of
provided in the Treaty invoked by the applicant are made expressly professionals in nation-building and, towards this end, promotes the
subject to the laws and regulations of the contracting State in whose sustained development of a reservoir of professionals whose competence has
been determined by honest and credible licensure examinations and whose
territory it is desired to exercise the legal profession; and Section 1
standards of professional service and practice are internationally recognized
of Rule 127, in connection with Sections 2, 9, and 16 thereof, which and considered world-class brought about the regulatory measures,
have the force of law, require that before anyone can practice the programs and activities that foster professional growth and advancement.
legal profession in the Philippines he must first successfully pass the
required bar examinations; . . ." Section 3. Professional Regulation Commission – There is hereby created a
three-man commission to be known as the Professional Regulation
We find no plausible reason to depart from this view. On the Commission, hereinafter referred to as the Commission, which shall be
contrary, we reiterate the same, inasmuch as the theory of attached to the office of the President for general direction and coordination.
respondent herein cannot be accepted without placing graduates
from our own educational institutions at a disadvantage vis-a-vis Section 4. Composition – The Commission shall be headed by one (1) full-
Spanish graduates from Spanish schools, colleges or universities. time Chairperson and two (2) full-time Commissioners, all to be appointed
Indeed, the latter could — under respondent's pretense — engage in by the President for a term of seven (7) years without reappointment to start
the practice of medicine in the Philippines without taking the from the time they assume office. Appointments to a vacancy that occurs
before the expiration of the term of a Commissioner shall cover only the
examination prescribed in Republic Act No. 2882, whereas the
unexpired term of the immediate predecessor. At the expiration of the
former would have to take and pass said examination. Worse still, Chairperson, the most senior of the Commissioners shall temporarily assume
since — as we ruled in the Garcia case — the benefits of the and perform the duties and functions of the Chairperson until a permanent
aforementioned Treaty cannot be availed of in the Philippines except Chairperson is appointed by the President.
by Spanish subjects, the result would be — should respondent's
contention be sustained — that graduates from Spanish schools of The Chairperson or Commissioner shall be at least forty (40) years of age,
medicine would be entitled to practice medicine in the Philippines holding a valid certificate of registration/professional license and a valid
without examination, if they were Spanish subjects, but not if they professional identification card or a valid certificate of competency issued
are Filipinos. by the Commission or a valid professional license issued by any government
agency, familiar with the principles and methods of professional regulation
and/or licensing and has had at least five (5) years of executive or
Surely said treaty was not made to discriminate against Philippine management experience: Provided, That, one (1) of the Commissioners
schools, colleges or universities, much less against nationals of the must be a past Chairperson/member of a Professional Regulatory Board.
Philippines.
Section 5. Exercise of Powers and Functions of the Commission – The
WHEREFORE, we hold that said Treaty merely extended to Chairperson of the Commission, and the Commissioners as members thereof
diplomas issued or degrees conferred by educational institutions of shall sit and act as a body to exercise general administrative, executive and
Spain the same recognition and treatment that we accord to similar policy-making functions of the Commission. The Commission shall
diplomas or degrees from local institutions of learning; that holders establish and maintain a high standard of admission to the practice of all
of said Spanish diplomas or degrees must take the examination professions and at all times ensure and safeguard the integrity of all
licensure examinations.
prescribed by our laws for holders of similar diplomas or degrees
from educational institutions in the Philippines; that resolution No.
25, series of 1965, of respondent Board is violative of Republic Act The Chairperson shall act as the presiding and chief executive officer of the
Commission. As presiding officer, he/she shall preside over the meetings of
No. 2882 and hence, null and void; and that, respondent Board of
the Commission sitting as a collegial body. As chief executive officer of the
Medical Examiners should be, as it is hereby ordered to cancel the Commission, he/she shall be responsible for the implementation of the
certificate of registration, for the practice of medicine in the policies and the programs adopted by the Commission for the general
Philippines, issued in favor of respondent Jose Ma. Torres, without administration of the Commission. He/she shall perform such other activities
special pronouncement as to costs. It is so ordered. which are necessary for the effective exercise of the powers, functions and
responsibilities of the Commission.

Section 6. Compensation and Other Benefits – The Chairperson shall

receive compensation and allowances equivalent to that of a Department
Secretary while the Commissioners shall receive compensation and
allowances equivalent to that of an Undersecretary. The Chairperson and the
7. PMA COE RES0 2011-001 ??? members of the Commission shall be entitled to retirement benefits provided
under Republic Act Numbered Fifteen Hundred and Sixty Eight, as
8. REPUBLIC ACT NO. 8981 amended by Republic Act Numbered Three Thousand Five Hundred and
Ninety Five.
AN ACT MODERNIZING THE PROFESSIONAL REGULATION
COMMISSION, REPEALING FOR THE PURPOSE PRESIDENTIAL Section 7. Powers, Functions and Responsibilities of the Commission – The
DECREE NUMBERED TWO HUNDRED AND TWENTY-THREE, powers, functions, and responsibilities of the Commission are as follows:
ENTITLED "CREATING THE PROFESSIONAL REGULATION
COMMISSION AND PRESCRIBING ITS POWERS AND (a) To administer, implement and enforce the regulatory policies
FUNCTIONS," AND FOR OTHER PURPOSES of the national government with respect to the regulation and
licensing of the various professions and occupations under its
Section 1. Title – This Act shall be called the "PRC Modernization Act of jurisdiction including the enhancement and maintenance of
2000."
 P a g e | 14

professional and occupational standards and ethics and the be withdrawn, cancelled, revoked, or suspended except for just
enforcement of the rules and regulations relative thereto: cause as may be provided by law after due notice and hearing;

(b) To perform any and all acts, enter into contracts, make such (f) To have custody of all the records of the various Boards,
rules and regulations and issue such orders and other including examination papers, minutes of deliberation, records of
administrative issuance as may be necessary in the execution and administrative cases and investigations and examination results for
implementation of its functions and the improvement of its control and disposition;
services;
(g) To determine and fix the amount of fees to be charged and
(c) To review, revise, and approve resolutions, embodying policies collected for examination, registration, registration without
promulgated by the Professional Regulatory Boards in the exercise examination, professional identification card, certification, docket,
of their powers and functions or in implementing the laws appeal, replacement, accreditation, including surcharges and other
regulating their respective professions and other official actions on fees not specified under the provisions of Republic Act Numbered
non-ministerial matters within their respective jurisdictions; Four Hundred Sixty Five as amended by Republic Act Numbered
Sixty Five Hundred and Eleven or to charge and collect reasonable
(d) To administer and conduct the licensure examinations of the fees at the rates higher than the rates provided thereunder subject
various regulatory boards in accordance with the rules and to the approval by the Office of the President.
regulations promulgated by the Commission; determine and fix
the places and dates of examinations; use publicly or privately (h) To appoint subject to the Civil Service laws, rules, and
owned buildings and facilities for examination purposes; conduct regulations, officials and employees of the Commission necessary
more than one (1) licensure examination: Provided, That, when for the effective performance of its functions and responsibilities;
there are two (2) or more examinations given in a year, at least one prescribe their duties and fix their compensation subject to the
(1) examinations shall be held on weekdays (Monday to Friday): provisions of Republic Act Numbered Six Thousand Seven
Provided, further, That, if only one (1) examination is given in a Hundred and Fifty Eight and allowances including other fringe
year, this shall be held only on weekdays: Provided, finally, That, benefits; and to assign and/or reassign personnel as the exigency
the Commission is also authorized to require the completion of a of the service requires subject to the Civil Service laws, rules and
refresher course where the examinee has failed to pass three (3) regulations; and to organize or reorganize the structure of the
times, except as otherwise provided by law; approve the results of Commission; and create or abolish positions or change the
examinations and the release of the same; adopt measures to designation of existing positions in accordance with a staffing
preserve the integrity and inviolability of licensure examinations; pattern prepared by it and approved by the Office of the President
appoint supervisors and room watchers from among the upon the recommendation of the Department of Budget and
employees of the government and/or private individuals with Management (DBM) to meet the changing conditions or as the
baccalaureate degrees, who have been trained by the Commission need arises: Provided, That, such changes shall not affect the
for the purpose and who shall be entitled to a reasonable daily employment status of the incumbents, reduce their ranks and/or
allowance for every examination day actually attended, to be salaries nor shall result in their separation from the service;
determined and fixed by the Commission; publish the list of
successful examinees; provide schools, colleges and universities, (i) To submit and recommend to the President of the Philippines
public and private, offering courses for licensure examinations, the names of licensed/registered professionals for appointment as
with copies of sample test questions on examinations recently members of the various Professional Regulatory Boards from
conducted by the Commission and copies of the syllabi or terms of among those nominated to fill up vacancies pursuant to the
specifications of subjects for licensure examinations; and impose provisions of Executive Order No. 496, Series of 1991;
the penalty of suspension or prohibition from taking licensure
examinations to any examinee charged and found guilty of
violating the rules and regulations governing the conduct of (j) Upon recommendation of the Professional Regulatory Board
licensure examinations promulgated by the Commission; concerned, to approve the registration of and authorize the
issuance of a certificate of registration/license and professional
identification card with or without examination to a foreigner who
(e) To admit the successful examinees to the practice of the is registered under the laws of his state or country and whose
profession or occupation; cause the entry of their names on its certificate of registration issued therein has not been suspended or
registry book and computerized database; issue certificates of revoked: Provided, That, the requirements for the registration or
registration/professional license, bearing the registrant’s name, licensing in said foreign state or country are substantially the same
picture, and registration number, signed by all the members of the as those required and contemplated by the laws of the Philippines
Board concerned and the Chairperson, with the official seal of the and that the laws of such foreign state or country allow the citizens
Board and the Commission affixed thereto which certificate shall of the Philippines to practice the profession on the same basis and
be the authority to practice; and at the option of the professional grant the same privileges as those enjoyed by the subjects or
concerned, ministerially issue the professional identification card, citizens of such foreign state or country: Provided, further, That,
to be used solely for the purpose of identification, upon payment the Commission may, upon recommendation of the Board
of the appropriate amount: Provided, That, marine deck and concerned, authorize the issuance of a certificate of
marine engineer officers shall also be issued endorsement registration/license or a special temporary permit to foreign
certificates exclusively by the Commission pursuant to the 1978 professionals who desire to practice their professions in the
and 1995 Standards of Training, Certification and Watch-keeping country under reciprocity and other international agreements;
(STCW) Convention, to the exclusion of any other government consultants in foreign-funded, joint venture or foreign-assisted
agency, Section 1(2) of Executive Order No. 149, Series of 1999 projects of the government, employees of Philippine or foreign
and provisions of other existing laws, executive orders, private firms or institutions pursuant to law, or health
administrative issuance/regulations to the contrary professionals engaged in humanitarian mission for a limited period
notwithstanding: Provided, further, That, once a certificate of of time: Provided, finally, That agencies, organizations or
registration/professional license, or certificate of competency, in individuals whether public or private, who secure he services of a
the case of marine deck and engine officers are issued, this cannot foreign professional authorized by law to practice in the
 P a g e | 15

Philippines for reasons aforementioned, shall be responsible for President of the Philippines their suspension or removal from
securing a special permit from the Professional Regulation office as the case may be;
Commission (PRC) and the Department of Labor and
Employment (DOLE), pursuant to PRC and DOLE rules: (t) To issue summons, subpoena and subpoena duces tecum in
connection with the investigation of cases against officials and
(k) To authorize any officer of the Commission to administer employees of the Commission and the members of the
oaths: Professional Regulatory Boards;

(l) To supervise foreign nations who are authorized by existing (u) To hold in contempt in erring party or person only upon
laws to practice their professions either as holders of a certificate application with a court of competent jurisdiction;
of registration and a professional identification card or a
temporary special permit in the Philippines; to ensue that the terms (v) To call upon or request any department, instrumentality, office,
and conditions for their practice or of their employment are strictly bureau, institution or agency of the government including local
complied with; to require the hiring or employing government government units to render such assistance as it may require, or to
agency or private entity/institution to secure a temporary special coordinate or cooperate in order to carry out, enforce or
permit from the concerned Board subject to approval by the implement the professional regulatory policies of the government
Commission and to file a criminal complaint against the head of or any program or activity it may undertake pursuant to the
the government agency or officers of the said private provisions of this Act;
entity/institution, who shall be liable under the penalty provided
for in the concerned professional regulatory law or the penalty
imposed pursuant to this Act, when the professional was hired and (w) To initiate an investigation, upon complaint under oath by an
allowed to practice his/her profession without permit; to file upon aggrieved party, of any person, whether a private individual or
due process request for deportation with the Bureau of professional, local or foreign, who practices the regulated
Immigration and Deportation (BID); and to supervise profession or occupation without being authorized by law, or
professionals who were former citizens of the Philippines and who without being registered with and licensed by the concerned
had been registered and issued a certificate of registration and a regulatory board and issued the corresponding license/professional
professional identification card prior to their naturalization as identification card or temporary or special permit, or who commits
foreign citizens, who may, while in the country on a visit, sojourn any of the prohibited acts provided in the regulatory laws of the
or permanent residence, practice their profession: Provided, That, various professions, which acts are criminal in nature, and if the
prior to the practice of their profession they shall have first been evidence so warrants, to forward the records of the case to the
issued a special permit and updated professional identification office of the city or provincial prosecutor for the filing of the
card by the Board concerned subject to approval by the corresponding information in court by the lawyers of the legal
Commission and upon payment of the permit and annual services of the Commission who may prosecute said case/s upon
registration fees; being deputized by the Secretary of Justice;

(m) To monitor the performance of schools in licensure (x) To prepare an annual report of accomplishments on the
examinations and publish the results thereof in a newspaper of programs, projects and activities of the Commission during the
national circulation; year for submission to Congress after the close of its calendar year
and make appropriate recommendations on issues and/or problems
affecting the Commission, the Professional Regulatory Board, and
(n) To adopt and institute a comprehensive rating system for the various professions under its jurisdiction; and
universities, colleges, and training institutes based on the passing
ratio and overall performance of students in board examinations;
(y) To perform such other functions and duties as may be
necessary to carry out the provisions of this Act, the various
(o) To exercise administrative supervision over the various professional regulatory laws, decrees, executive orders and other
professional regulatory boards and its members; administrative issuance.

(p) To adopt and promulgate such rules and regulations as may be Section 8. Regional Offices – The Commission is hereby authorized to
necessary to effectively implement policies with respect to the create regional offices as may be necessary to carry out their functions
regulation and practice of the professions; mandated under this Act.

(q) To implement the program for the full computerization of all Section 9. Powers, Functions and Responsibilities of the Various
licensure examinations given by the various professional Professional Regulatory Boards – The various, professional regulatory
regulatory boards including the registration of professionals not boards shall retain the following powers, functions and responsibilities:
later than the year 2003 and other operations of the Commission;
(a) To regulate the practice of the professions in accordance with
(r) To investigate and decide administrative matters involving the provisions of their respective professional regulatory laws;
officers and employees under the jurisdiction of the Commission;
(b) To monitor the conditions affecting the practice of the
(s) To investigate motu proprio or upon the filing of a verified profession or occupation under their respective jurisdictions and
complaint, any member of the Professional Regulatory Boards for whenever necessary, adopt such measures as may be deemed
neglect of duty, incompetence, unprofessional, unethical, immoral proper for the enhancement of the profession or occupation and/or
or dishonorable conduct, commission of irregularities in the the maintenance of high professional, ethical and technical
licensure examinations which taint or impugn the integrity and standards, and for this purpose the members of the Board duly
authenticity of the results of the said examinations and, if found authorized by the Commission with deputized employees of the
guilty, to revoke or suspend their certificates of registration and Commission, may conduct ocular inspection in industrial,
professional licenses/identification cards and to recommend to the mechanical, electrical or chemical plants or establishments,
 P a g e | 16

hospitals, clinics, laboratories, testing facilities, mines and Section 11. Person to Teach Subjects for Licensure Examination on all
quarries, other engineering facilities and in the case of schools, in Professions – All subjects for licensure examinations shall be taught by
coordination with the Commission on Higher Education (CHED); persons who are holders of valid certificates of registration and valid
professional licenses of the profession and who comply with the other
(c) To hear and investigate cases arising from violations of their requirements of the CHED.
respective laws, the rules and regulations promulgated thereunder
and their Codes of Ethics and, for this purpose, may issue Section 12. Assistance of Law Enforcement Agency – Any law enforcement
summons, subpoena and subpoena duces tecum to alleged agency shall, upon call or request of the Commission or of any Professional
violators and/or witnesses to compel their attendance in such Regulatory Board, render assistance in enforcing the regulatory law of the
investigations or hearings: Provided, That, the decision of the profession including the rules and regulations promulgated thereunder by
Professional Regulatory Board shall, unless appealed to the prosecuting the violators thereof in accordance with law and the rules of
Commission, become final and executory after fifteen (15) days court.
from receipt of notice of judgment or decision;
Section 13. Appropriations – The amount necessary to carry out the initial
(d) To delegate the hearing or investigation of administrative cases implementation of this Act shall be charged against the current year’s
filed before them except in cases where the issue or question appropriations of the Professional Regulation Commission. Thereafter, such
involved strictly concerns the practice of the profession or sums as may be necessary for the continued implementation of this Act shall
occupation, in which case, the hearing shall be presided over by at be included in the succeeding General Appropriations Act.
least one (1) member of the Board concerned assisted by a Legal
or Hearing Officer of the Commission; Section 14. Authority to Use Income – In addition to the annual
appropriations of the Commission provided under the Annual General
(e) To conduct, through the Legal Officers of the Commission, Appropriations Act, the Commission is hereby authorized to use its income
summary proceedings on minor violations of their respective not exceeding the amount of Forty-five million pesos (P45,000,000.00) a
regulatory laws, violations of the rules and regulations issued by year for a period of five (5) years after the effectivity of this Act to
the boards to implement their respective laws, including violations implement the program for full computerization of the operations of the
of the general instructions to examinees committed by examinees, Commission, subject to the usual accounting and auditing requirements.
and render summary judgment thereon which shall, unless
appealed to the Commission, become final and executory after Section 15. Penalties for Manipulation and Other Corrupt Practices in the
fifteen (15) days from receipt of notice of judgment or decision; Conduct of Professional Examinations –

(f) Subject to final approval by the Commission, to recommend (a) Any person who manipulates or rigs licensure examination
registration without examination and the issuance of results, secretly informs or makes known licensure examination
corresponding certificate of registration and professional questions prior to the conduct of the examination or tampers with
identification card; the grades in professional licensure examinations shall, upon
conviction, be punished by imprisonment of not less than six (6)
(g) After due process, to suspend, revoke or reissue, reinstate years and one (1) day to not more than twelve (12) years or a fine
certificate of registration or licenses for causes provided by law; of not less than Fifty thousand pesos (P50,000.00) to not more
than One hundred thousand pesos (P100,000.00) or both such
(h) To prepare, adopt and issue the syllabi or tables of imprisonment and fine at the discretion of the court.
specifications of the subjects for examinations in consultation with
the academe; determine and prepare the questions for the licensure (b) In case the offender is an officer or employee of the
examinations which shall strictly be within the scope of the Commission or a member of the regulatory board, he/she shall be
syllabus or table of specifications of the subject for examination; removed from office and shall suffer the penalty of perpetual
score and rate the examination papers with the name and signature absolute disqualification from public office to addition to the
of the Board member concerned appearing thereon and submit the penalties prescribed in the preceding section of this Act;
results in all subjects duly signed by the members of the Board to
the Commission within ten (10) days from the last day of (c) The penalty of imprisonment ranging from four (4) years and
examination unless extended by the Commission for justifiable one (1) day to six (6) years or a fine ranging from Twenty
cause/s; and subject to the approval by the Commission, determine thousand pesos (P20,000.00) to not more than Forty-nine thousand
the appropriate passing general average rating in an examination if pesos (P49,000.00), or both imprisonment and fine at the
not provided for in the law regulating the profession; and discretion of the court, shall be imposed upon the accomplices.
The penalty of imprisonment ranging from two (2) years and one
(i) To prepare an annual report of accomplishments on programs, (1) day to four (4) years or a fine ranging from Five thousand
projects and activities of the Board during the year for submission pesos (P5,000.00) to not more than Nineteen thousand pesos
to the Commission after the close of each calendar year and make (P19,000.00), or both imprisonment and fine at the discretion of
appropriate recommendations on issues or problems affecting the the court, shall be imposed upon the accessories.
profession to the Commission.
Section 16. Penalties for Violation of Section 7 – Subparagraph (1) by
Section 10. Compensation of the Members of the Professional Regulatory Heads of Government Agencies or Officers of Private Entities/Institutions –
Boards – The members of the Professional Regulatory Boards shall receive Any head of a government agency or officer(s) of a private firm/institution
compensation equivalent to, at least, two salary grades lower than the salary who violates Section 7 – subpar. (1) of this Act shall be punished by
grade of the Commissioners: Provided, That the Chairperson of the imprisonment of not less than six (6) months and one (1) day to not more
Regulatory Board shall receive a monthly compensation of two steps higher than six (6) years, or a fine of not less than Fifty thousand pesos
than the members of the Board, and: Provided, further, That they shall be (P50,000.00) to not more than Five hundred thousand pesos (P500,000.00)
entitled to other allowances and benefits provided under existing laws. or both at the discretion of the court.
 P a g e | 17

Section 17. Implementing Rules and Regulations – Within ninety (90) days between Japan and the Philippines in admitting foreigners into the
after the approval of this Act, the Professional Regulation Commission, practice of medicine.6
together with representatives of the various Professional Regulatory Boards
and accredited professional organizations, the DBM, and the CHED shall
prepare and promulgate the necessary rules and regulations needed to Respondent submitted a duly notarized English translation of the
implement the provisions of this Act. Medical Practitioners Law of Japan duly authenticated by the Consul
General of the Philippine Embassy to Japan, Jesus I. Yabes;7 thus, he
Section 18. Transitory Provisions – The incumbent Commissioner and two was allowed to take the Medical Board Examinations in August
(2) incumbent Associate Commissioners shall serve as Chairperson and 1992, which he subsequently passed.8
Commissioners respectively under the terms for which they have been
appointed without need of new appointments. The incumbent Executive In spite of all these, the Board of Medicine (Board) of the PRC, in a
Director shall likewise serve as Assistant Commissioner without need of letter dated March 8, 1993, denied respondent's request for a license
new appointment.
to
Section 19. Separability Clause – If any provision of this Act or the
application of such provision to any person or circumstances is declared practice medicine in the Philippines on the ground that the Board
invalid or unconstitutional, the remainder of this Act or application of such "believes that no genuine reciprocity can be found in the law of
provisions to other persons or circumstance shall not be affected by such Japan as there is no Filipino or foreigner who can possibly practice
declaration. there."9

Section 20. Repealing Clause – Republic Act. No. 546, Presidential Decree Respondent then filed a Petition for Certiorari and Mandamus
No. 223, as amended by Presidential Decree No. 657, Republic Act No. against the Board before the RTC of Manila on June 24, 1993, which
5181, and Executive Order No. 266, Series of 1995 are hereby repealed. petition was amended on February 14, 1994 to implead the PRC
Section 23 (h) of Republic Act No. 7836, Section 4 (m & s). Section 23 of through its Chairman.10
Republic Act No. 7920, and Section 29 of Republic Act No. 8050, insofar as
it requires completion of the requirements of the Continuing Professional
Education (CPE) as a condition for the renewal of the license are hereby In his petition before the RTC, respondent alleged that the Board and
repealed. All other laws, orders, rules and regulations or resolutions and all the PRC, in refusing to issue in his favor a Certificate of Registration
part/s thereof inconsistent with the provisions of this Act are hereby and/or license to practice medicine, had acted arbitrarily, in clear
repealed or amended accordingly. contravention of the provision of Section 20 of Republic Act (R.A.)
No. 2382 (The Medical Act of 1959), depriving him of his legitimate
Section 21. Effectivity – This Act shall take effect after fifteen (15) days right to practice his profession in the Philippines to his great damage
following its publication in the Official Gazette or in two (2) newspapers of and prejudice.11
general circulation, whichever is earlier.Approved: December 05, 2000
On October 19, 2003, the RTC rendered its Decision finding that
9. HB 4955 (separate copy) respondent had adequately proved that the medical laws of Japan
allow foreigners like Filipinos to be granted license and be admitted
G.R. No. 166097 July 14, 2008 BOARD OF MEDICINE, DR. into the practice of medicine under the principle of reciprocity; and
RAUL FLORES (now DR. JOSE S. RAMIREZ), in his capacity that the Board had a ministerial duty of issuing the Certificate of
as Chairman of the Board, PROFESSIONAL REGULATION Registration and license to respondent, as it was shown that he had
COMMISSION, through its Chairman, HERMOGENES substantially complied with the requirements under the law.12 The
POBRE (now DR. ALCESTIS M. GUIANG), Petitioners, RTC then ordered the Board to issue in favor of respondent the
vs.YASUYUKI OTA, Respondent. corresponding Certificate of Registration and/or license to practice
medicine in the Philippines.13
Before the Court is a Petition for Review on Certiorari assailing the
Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 849452 The Board and the PRC (petitioners) appealed the case to the CA,
dated November 16, 2004 which affirmed the Decision3 of the stating that while respondent submitted documents showing that
Regional Trial Court (RTC), Branch 22, Manila, dated October 19, foreigners are allowed to practice medicine in Japan, it was not
2003.4 shown that the conditions for the practice of medicine there are
practical and attainable by a foreign applicant, hence, reciprocity
The facts are as follows: was not established; also, the power of the PRC and the Board to
regulate and control the practice of medicine is discretionary and not
Yasuyuki Ota (respondent) is a Japanese national, married to a ministerial, hence, not compellable by a writ of mandamus.14
Filipina, who has continuously resided in the Philippines for more
than 10 years. He graduated from Bicol Christian College of The CA denied the appeal and affirmed the ruling of the RTC.15
Medicine on April 21, 1991 with a degree of Doctor of Medicine.5
After successfully completing a one-year post graduate internship Hence, herein petition raising the following issue:
training at the Jose Reyes Memorial Medical Center, he filed an
application to take the medical board examinations in order to obtain WHETHER THE COURT OF APPEALS COMMITTED
a medical license. He was required by the Professional Regulation A REVERSIBLE ERROR IN FINDING THAT
Commission (PRC) to submit an affidavit of undertaking, stating RESPONDENT HAD ESTABLISHED THE EXISTENCE
among others that should he successfully pass the same, he would OF RECIPROCITY IN THE PRACTICE OF MEDICINE
not practice medicine until he submits proof that reciprocity exists BETWEEN THE PHILIPPINES AND JAPAN.16
 P a g e | 18

Petitioners claim that: respondent has not established by competent Petitioners filed a Reply24 and both parties filed their respective
and conclusive evidence that reciprocity in the practice of medicine memoranda25 reiterating their arguments.1avvphi1
exists between the Philippines and Japan. While documents state that
foreigners are allowed to practice medicine in Japan, they do not The Court denies the petition for lack of merit.
similarly show that the conditions for the practice of medicine in
said country are practical and attainable by a foreign applicant. There is no question that a license to practice medicine is a privilege
There is no reciprocity in this case, as the requirements to practice or franchise granted by the government.26 It is a right that is earned
medicine in Japan are practically impossible for a Filipino to comply through years of education and training, and which requires that one
with. There are also ambiguities in the Medical Practitioners Law of must first secure a license from the state through professional board
Japan, which were not clarified by respondent, i.e., what are the examinations.27
provisions of the School Educations Laws, what are the criteria of
the Minister of Health and Welfare of Japan in determining whether
the academic and technical capability of foreign medical graduates Indeed,
are the same or better than graduates of medical schools in Japan,
and who can actually qualify to take the preparatory test for the [T]he regulation of the practice of medicine in all its branches has
National Medical Examination. Consul General Yabes also stated long been recognized as a reasonable method of protecting the health
that there had not been a single Filipino who was issued a license to and safety of the public. That the power to regulate and control the
practice medicine by the Japanese Government. The publication practice of medicine includes the power to regulate admission to the
showing that there were foreigners practicing medicine in Japan, ranks of those authorized to practice medicine, is also well
which respondent presented before the Court, also did not recognized. Thus, legislation and administrative regulations
specifically show that Filipinos were among those listed as requiring those who wish to practice medicine first to take and pass
practicing said profession.17 Furthermore, under Professional medical board examinations have long ago been recognized as valid
Regulation Commission v. De Guzman,18 the power of the PRC and exercises of governmental power. Similarly, the establishment of
the Board to regulate and control the practice of medicine includes minimum medical educational requirements – i.e., the completion of
the power to regulate admission to the ranks of those authorized to prescribed courses in a recognized medical school – for admission to
practice medicine, which power is discretionary and not ministerial, the medical profession, has also been sustained as a legitimate
hence, not compellable by a writ of mandamus.19 exercise of the regulatory authority of the state."28

Petitioners pray that the CA Decision dated November 16, 2004 be It must be stressed however that the power to regulate the exercise of
reversed and set aside, that a new one be rendered reinstating the a profession or pursuit of an occupation cannot be exercised by the
Board Order dated March 8, 1993 which disallows respondent to State or its agents in an arbitrary, despotic, or oppressive manner. A
practice medicine in the Philippines, and that respondent's petition political body which regulates the exercise of a particular privilege
before the trial court be dismissed for lack of merit.20 has the authority to both forbid and grant such privilege in
accordance with certain conditions. As the legislature cannot validly
In his Comment, respondent argues that: Articles 2 and 11 of the bestow an arbitrary power to grant or refuse a license on a public
Medical Practitioners Law of Japan and Section 9 of the Philippine agency or officer, courts will generally strike down license
Medical Act of 1959 show that reciprocity exists between the legislation that vests in public officials discretion to grant or refuse a
Philippines and Japan concerning the practice of medicine. Said laws license to carry on some ordinarily lawful business, profession, or
clearly state that both countries allow foreigners to practice medicine activity without prescribing definite rules and conditions29for the
in their respective jurisdictions as long as the applicant meets the guidance of said officials in the exercise of their power.
educational requirements, training or residency in hospitals and pass
the licensure examination given by either country. Consul General R.A. No. 2382 otherwise known as the Medical Act of 1959 states in
Yabes in his letter dated January 28, 1992 stated that "the Japanese Section 9 thereof that:
Government allows a foreigner to practice medicine in Japan after
complying with the local requirements." The fact that there is no Section 9. Candidates for Board Examinations.- Candidates for
reported Filipino who has successfully penetrated the medical Board examinations shall have the following qualifications:
practice in Japan does not mean that there is no reciprocity between
the two countries, since it does not follow that no Filipino will ever 1. He shall be a citizen of the Philippines or a citizen of any foreign
be granted a medical license by the Japanese Government. It is not country who has submitted competent and conclusive documentary
the essence of reciprocity that before a citizen of one of the evidence, confirmed by the Department of Foreign Affairs, showing
contracting countries can demand its application, it is necessary that that his country’s existing laws permit citizens of the Philippines to
the interested citizen’s country has previously granted the same practice medicine under the same rules and regulations governing
privilege to the citizens of the other contracting country.21 citizens thereof;
Respondent further argues that Section 20 of the Medical Act of
195922 indicates the mandatory character of the statute and an
xxxx
imperative obligation on the part of the Board inconsistent with the
idea of discretion. Thus, a foreigner, just like a Filipino citizen, who
successfully passes the examination and has all the qualifications Presidential Decree (P.D.) No. 22330 also provides in Section (j)
and none of the disqualifications, is entitled as a matter of right to thereof that:
the issuance of a certificate of registration or a physician’s license,
which right is enforceable by mandamus.23 j) The [Professional Regulation] Commission may, upon the
recommendation of the Board concerned, approve the registration of
 P a g e | 19

and authorize the issuance of a certificate of registration with or R.A. No. 2382, which provides who may be candidates for the
without examination to a foreigner who is registered under the laws medical board examinations, merely requires a foreign citizen to
of his country: Provided, That the requirement for the registration or submit competent and conclusive documentary evidence, confirmed
licensing in said foreign state or country are substantially the same by the Department of Foreign Affairs (DFA), showing that his
as those required and contemplated by the laws of the Philippines country’s existing laws permit citizens of the Philippines to practice
and that the laws of such foreign state or country allow the citizens medicine under the same rules and regulations governing citizens
of the Philippines to practice the profession on the same basis and thereof.
grant the same privileges as the subject or citizens of such foreign
state or country: Provided, finally, That the applicant shall submit Section (j) of P.D. No. 223 also defines the extent of PRC's power to
competent and conclusive documentary evidence, confirmed by the grant licenses, i.e., it may, upon recommendation of the board,
Department of Foreign Affairs, showing that his country's existing approve the registration and authorize the issuance of a certificate of
laws permit citizens of the Philippines to practice the profession registration with or without examination to a foreigner who is
under the rules and regulations governing citizens thereof. The registered under the laws of his country, provided the following
Commission is also hereby authorized to prescribe additional conditions are met: (1) that the requirement for the registration or
requirements or grant certain privileges to foreigners seeking licensing in said foreign state or country are substantially the same
registration in the Philippines if the same privileges are granted to or as those required and contemplated by the laws of the Philippines;
some additional requirements are required of citizens of the (2) that the laws of such foreign state or country allow the citizens of
Philippines in acquiring the same certificates in his country; the Philippines to practice the profession on the same basis and grant
the same privileges as the subject or citizens of such foreign state or
xxxx country; and (3) that the applicant shall submit competent and
conclusive documentary evidence, confirmed by the DFA, showing
As required by the said laws, respondent submitted a copy of the that his country's existing laws permit citizens of the Philippines to
Medical Practitioners Law of Japan, duly authenticated by the practice the profession under the rules and regulations governing
Consul General of the Embassy of the Philippines in Japan, which citizens thereof.
provides in Articles 2 and 11, thus:
The said provision further states that the PRC is authorized to
Article 2. Anyone who wants to be medical practitioner must pass prescribe additional requirements or grant certain privileges to
the national examination for medical practitioner and get license foreigners seeking registration in the Philippines if the same
from the Minister of Health and Welfare. privileges are granted to or some additional requirements are
required of citizens of the Philippines in acquiring the same
xxxx certificates in his country.

Article 11. No one can take the National Medical Examination Nowhere in said statutes is it stated that the foreign applicant must
except persons who conform to one of the following items: show that the conditions for the practice of medicine in said country
are practical and attainable by Filipinos. Neither is it stated that it
must first be proven that a Filipino has been granted license and
1. Persons who finished regular medical courses at a allowed to practice his profession in said country before a foreign
university based on the School Education Laws (December applicant may be given license to practice in the Philippines. Indeed,
26, 1947) and graduated from said university. the phrase used in both R.A. No. 2382 and P.D. No. 223 is that:

2. Persons who passed the preparatory test for the National [T]he applicant shall submit] competent and conclusive documentary
Medical Examination and practiced clinics and public evidence, confirmed by the Department of Foreign Affairs, showing
sanitation more than one year after passing the said test. that his country's existing laws permit citizens of the Philippines to
practice the profession [of medicine] under the [same] rules and
3. Persons who graduated from a foreign medical school or regulations governing citizens thereof. x x x (Emphasis supplied)
acquired medical practitioner license in a foreign country,
and also are recognized to have the same or more academic It is enough that the laws in the foreign country permit a Filipino to
ability and techniques as persons stated in item 1 and item 2 get license and practice therein. Requiring respondent to prove first
of this article.31 that a Filipino has already been granted license and is actually
practicing therein unduly expands the requirements provided for
Petitioners argue that while the Medical Practitioners Law of Japan under R.A. No. 2382 and P.D. No. 223.
allows foreigners to practice medicine therein, said document does
not show that conditions for the practice of medicine in said country While it is true that respondent failed to give details as to the
are practical and attainable by a foreign applicant; and since the conditions stated in the Medical Practitioners Law of Japan -- i.e.,
requirements are practically impossible for a Filipino to comply the provisions of the School Educations Laws, the criteria of the
with, there is no reciprocity between the two countries, hence, Minister of Health and Welfare of Japan in determining whether the
respondent may not be granted license to practice medicine in the academic and technical capability of foreign medical graduates are
Philippines. the same as or better than that of graduates of medical schools in
Japan, and who can actually qualify to take the preparatory test for
The Court does not agree. the National Medical Examination – respondent, however, presented
 P a g e | 20

proof that foreigners are actually practicing in Japan and that The Court finds that the factual circumstances of De Guzman are
Filipinos are not precluded from getting a license to practice there. different from those of the case at bar; hence, the principle applied
therein should be viewed differently in this case. In De Guzman,
Respondent presented before the trial court a Japanese Government there were doubts about the integrity and validity of the test results
publication, Physician-Dentist-Pharmaceutist Survey, showing that of the examinees from a particular school which garnered unusually
there are a number of foreign physicians practicing medicine in high scores in the two most difficult subjects. Said doubts called for
Japan.32 He also presented a letter dated January 28, 1992 from serious inquiry concerning the applicants’ satisfactory compliance
Consul General Yabes,33 which states: with the Board requirements.34 And as there was no definite showing
that the requirements and conditions to be granted license to practice
Sir: medicine had been satisfactorily met, the Court held that the writ of
mandamus may not be granted to secure said privilege without
thwarting the legislative will.35
With reference to your letter dated 12 January 1993, concerning your
request for a Certificate of Confirmation for the purpose of
establishing a reciprocity with Japan in the practice of medical Indeed, to be granted the privilege to practice medicine, the
profession relative to the case of Mr. Yasuyuki Ota, a Japanese applicant must show that he possesses all the qualifications and none
national, the Embassy wishes to inform you that inquiries from the of the disqualifications. It must also appear that he has fully
Japanese Ministry of Foreign Affairs, Ministry of Health and complied with all the conditions and requirements imposed by the
Welfare as well as Bureau of Immigration yielded the following law and the licensing authority.36
information:
In De Guzman itself, the Court explained that:
1. They are not aware of a Filipino physician who was
granted a license by the Japanese Government to practice A careful reading of Section 2037 of the Medical Act of 1959
medicine in Japan; discloses that the law uses the word "shall" with respect to the
issuance of certificates of registration. Thus, the petitioners [PRC]
2. However, the Japanese Government allows a foreigner to "shall sign and issue certificates of registration to those who have
practice medicine in Japan after complying with the local satisfactorily complied with the requirements of the Board." In
requirements such as holding a valid visa for the purpose of statutory construction the term "shall" is a word of command. It is
taking the medical board exam, checking the applicant's given imperative meaning. Thus, when an examinee satisfies the
qualifications to take the examination, taking the national requirements for the grant of his physician's license, the Board is
board examination in Japanese and filing an application for obliged to administer to him his oath and register him as a physician,
the issuance of the medical license. pursuant to Section 20 and par. (1) of Section 22 of the Medical Act
of 1959.38
Accordingly, the Embassy is not aware of a single Filipino physician
who was issued by the Japanese Government a license to practice In this case, there is no doubt as to the competence and qualifications
medicine, because it is extremely difficult to pass the medical board of respondent. He finished his medical degree from Bicol Christian
examination in the Japanese language. Filipino doctors here are only College of Medicine. He completed a one-year post graduate
allowed to work in Japanese hospitals as trainees under the internship training at the Jose Reyes Memorial Medical Center, a
supervision of a Japanese doctor. On certain occasions, they are government hospital. Then he passed the Medical Board
allowed to show their medical skills during seminars for Examinations which was given on August 8, 1992 with a general
demonstration purposes only. (Emphasis supplied) average of 81.83, with scores higher than 80 in 9 of the 12 subjects.

Very truly yours, In fine, the only matter being questioned by petitioners is the alleged
failure of respondent to prove that there is reciprocity between the
laws of Japan and the Philippines in admitting foreigners into the
Jesus I. Yabes practice of medicine. Respondent has satisfactorily complied with
Minister Counsellor & the said requirement and the CA has not committed any reversible
Consul General error in rendering its Decision dated November 16, 2004 and
Resolution dated October 19, 2003.
From said letter, one can see that the Japanese Government allows
foreigners to practice medicine therein provided that the local WHEREFORE, the petition is hereby DENIED for lack of merit.
requirements are complied with, and that it is not the impossibility or
the prohibition against Filipinos that would account for the absence
of Filipino physicians holding licenses and practicing medicine in 316 S.W.2d 515 (1958) STATE of Missouri ex rel.
Japan, but the difficulty of passing the board examination in the William A. COLLET, Prosecuting Attorney of
Japanese language. Granting that there is still no Filipino who has Jackson County, Missouri, Plaintiff-Appellant, v.
been given license to practice medicine in Japan, it does not mean William SCOPEL, Defendant-Respondent.
that no Filipino will ever be able to be given one.
Supreme Court of Missouri. Division No. 2.September 8,
Petitioners next argue that as held in De Guzman, its power to issue 1958.Motion for Rehearing or to Transfer Denied October 13,
licenses is discretionary, hence, not compellable by mandamus.
 P a g e | 21

1958.Motion for Rehearing or to Transfer to Court En Banc Denied "medical director" nor any of the "five doctors" testified, but
October 13, 1958. defendant identified the medical director as M. A. Elstein, M.D., "an
old gentleman" who "spends most of the time there." Defendant is
BARRETT, Commissioner. "part of the clinic" and maintains a large office there, with his name
inscribed on the door as "Dr. William Scopel, N.D., Dean
This is a civil action in equity instituted on behalf of the State by the Diagnosis." His office furnishings include "a standard examination
Prosecuting Attorney of Jackson County, acting in his official table * * * used by all physicians" and a number of glass cases
capacity [Section 56.060],1 to enjoin the unlicensed practice of containing surgical instruments and what appear to be "pills and
medicine by defendant, William Scopel, on the ground that such other medicine." One witness, a practical nurse, recognized in
practice is "a continuing public nuisance detrimental to the public defendant's office specula for vaginal examinations and instruments
welfare and dangerous to the public health, contrary to and against for swabbing wounds and pulling sterile gauze from containers, and
the public policy of the State." Upon this appeal by the State from defendant readily admitted his use of a stethoscope and "a
the decree of the trial court dissolving the temporary restraining cardiograph machine"— "I had the first one ever made."
order theretofore issued and dismissing plaintiff's petition, the fact
that the State is a party to the action [State ex rel. Thrash v. Lamb, The insistence of defendant, whose practice obviously was not
237 Mo. 437, 141 S.W. 665] invokes our appellate jurisdiction under drugless, that "everything that was prescribed from that clinic that
Article 5, Section 3, Mo.Const. of 1945, 2 V.A.M.S. required the prescription by a physician, it was so done by said
physician" finds no independent support in the record. On the
Defendant admittedly has neither sought nor obtained a license to contrary, the evidence persuasively indicates that defendant, in fact,
practice medicine in this State [see Sections 334.010, 334.030 and prescribed although he sometimes did so over the signature of his
334.040, as amended Laws of 1951, p. 727], but his contention is "medical director." After one female patient (gathering evidence for
"that he is a naturopath and as such does not practice medicine and prosecution of this suit) had been examined by defendant, he gave
that his business is not subject to the licensing or control of any her a prescription for phenobarbital bearing Elstein's signature.
board or agency under the laws of Missouri." Defendant's loose When cross-examined concerning this prescription (before the
definition of naturopathy is "a system of medicine that utilizes patient had testified or had been identified), defendant first said that
properties required by the body to bring about a natural reaction— "I handed it to him (the patient), but it was written by the medical
that is as near as possible that we define ourselves." (All emphasis director; he was right there when I gave it," then surmised "I suppose
herein is ours.) Illustrative of the statutory definitions of he was," and finally conceded "I don't recollect." When recalled to
naturopathy, in those states in which that system of medicine has the stand after the patient had testified, defendant remembered that
been recognized by legislative enactment, is the Florida definition in Elstein "was in the next room and, at the time I could not take him
Section 462.01, F.S.A.: "* * * (T)he use and practice of before a patient, because he was unable to come * * * his urine and
psychological, mechanical and material health sciences to aid in his odor was unpresentable," so "I took the finding of the diagnosis
purifying, cleansing and normalizing human tissues for the to Dr. Elstein, and he wrote this prescription which I handed to this
preservation or restoration of health, according to the fundamental woman, according to the diagnosis that I gave to him."
principles of anatomy, physiology and applied psychology, as may
be required. Naturopathic practice employs, among other agencies, When this same patient returned to defendant's office about ten days
phytotherapy, dietetics, psychotherapy, suggesto-therapy, later, "he asked me (the patient) some questions and took my blood
hydrotherapy, zone therapy, bio-chemistry, external applications, pressure and listened to my heart and told me I was in perfect
condition"; but, notwithstanding the patient's "perfect condition,"
[316 S.W.2d 517] defendant gave her a small box labeled "Caroid and Bile Salts with
electrotherapy, mechanotherapy, mechanical and electrical Phenolphthalein"—"Physician's Sample," which contained three
appliances, hygiene, first aid, sanitation and heliotherapy * * *." brown tablets—"a laxative to take in the evening," and a dark bottle
Although naturopathy is sometimes said to be a drugless system of filled with a liquid and bearing a label with the handwritten
healing, the South Carolina Naturopathic Physicians Association direction, "(1) teaspofull after meal." Defendant said that the brown
alleged, in an action for a declaratory judgment, "that it is essential tablets actually were "Feenamint, sent out by the company,
in the practice of their profession * * * to administer and prescribe
such drugs" as opium and its derivatives, aminopyrine, barbiturates [316 S.W.2d 518]
and penicillin [Dantzler v. Callison, 1955, 227 S.C. 317, 88 S.E.2d and everyone that comes into my clinic I give them one"; and, in
64, 66], and licensed naturopaths in Florida stubbornly and response to the incredulous query, "whether they need it or not,"
successfully sought the right to prescribe narcotic drugs. State Dept. defendant blandly assured his cross-examiner, "yes, a good physic
of Public Welfare v. Melser, Fla., 69 So.2d 347, 353; In re doesn't hurt anyone." According to defendant, the bottle of liquid
Complaint of Melser, 160 Fla. 333, 32 So.2d 742. See also Perry v. was "merely a tonic made up of licorice and iron and stuff like that *
Larson, 5 Cir., 104 F.2d 728. * * more or less of a fruit substance," which "anybody can take * * *
anytime" and which is beneficial "in general for everything." The
Defendant in the case at bar operates at 1410 Central in Kansas City, patient paid defendant $5 on each visit.
Missouri, "a school of naturopathic medicine" which he calls the
American College of Naturopathic Medicine and Laboratory Defendant recognized, as having "been in my office," a small bottle
Technic. At the same address, defendant has "my clinic" which, as bearing the typewritten label "Acetanalid—3 Grain" which,
he says, "I must have" in connection with the "school." According to however, contained (so he said) "pure aspirin." He thought that he
defendant, his "institution is under the supervision of a medical had given the bottle and its contents to a female patient from
director" and "we have five doctors there all the time." Neither the Independence, who "come in with migraine headaches, and the way
 P a g e | 22

she acted and the line that she told me (defendant), I realized she nurses in Chapter 335, optometrists in Chapter 336, osteopaths in
was someone who a thousand times a year were sent to me, and I Chapter 337, and pharmacists in Chapter 338. None of the rights or
took the aspirin out of that bottle." Defendant also identified on privileges of naturopaths have been infringed or denied by reason of
crossexamination an unsigned prescription blank on which he had the fact that they have not been accorded similar legislative
written "Permajute of Potassian Cristal." Insisting that "it is properly recognition by name, for the general assembly is under no duty or
spelled," he conceded that permanganate of potash crystals were compulsion to recognize and deal with every school of medicine and
intended, agreed that "evidently I have given it to someone to provide for the licensing of the followers of each such school by
(unidentified in the record) a long time ago," but could not say for requiring of them only such education or knowledge as that
what purpose he might have recommended the use of such crystals particular school may demand. Hahn v. State, Wyo., 322 P.2d 896,
—"permanganate is used for a million and one things." 901; Schlichting v. Texas State Board of Medical Examiners, Tex.,
310 S.W.2d 557, 563-564; Hitchcock v. Collenberg, D.C.Md., 140
Clarence E. Holt, a naturopath called as a witness for defendant, had F.Supp. 894, 899, affirmed 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d
occupied an office adjoining that of defendant. Holt bluntly stated 718. Our statutes do not prohibit the practice of naturopathy, but the
that "all naturopath doctors are specialists in the laws of nature to general assembly has, in Chapter 334, established certain
take care of any disease in the human body," definitely asserted that requirements which must be met and satisfied by any person (not
naturopaths "diagnose conditions of the human body and exempted by Section 334.150) who undertakes the practice of
disease"—"that is part of naturopathy," and readily agreed that it medicine. One so licensed to practice may, if he desires, apply the
likewise is "part of naturopathy, certainly," to prescribe treatment for tenets and principles of naturopathy in his practice. Dantzler v.
any condition found. Then, in response to an inquiry whether "you Callison, 230 S.C. 75, 94 S.E.2d 177, 187(16), appeal dismissed 352
know of your own knowledge, by reason of your office association U.S. 939, 77 S.Ct. 263, 1 L.Ed.2d 235; Davis v. Beeler, 185 Tenn.
with him * * *, he (defendant) did do those things," Holt answered, 638, 207 S.W.2d 343, 347, appeal dismissed 333 U.S. 859, 68 S.Ct.
"I have reason to think so." 745, 92 L.Ed. 1138; Louisiana State Board of Medical Examiners v.
Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720,
Among the exhibits, we find (1) defendant's "main book," a paper- 47 S.Ct. 590, 71 L.Ed. 1324.
bound pamphlet of fifty-four pages titled "Scopel's Natural Antibody
Theory," written by defendant, "Degrre N.D., M.D.—Dean of the In determining the initial question as to whether defendant is
American College of Natural Medicine and Laboratory Technic, engaged in the practice of medicine within the contemplation and
Kansas City, Missouri," and copyrighted, revised and reprinted in meaning of Chapter 334, we are interested in what he does, not what
1952, (2) an eight-page pamphlet bearing the same title, with an he calls himself or his system of practice [State v. Smith, supra, 233
author's foreword by "William Scopel, M.D." and (3) a tenpage Mo. loc. cit. 260, 135 S.W. loc. cit. 469; State v. Blumenthal, 141
pamphlet of invective captioned "It Happened To Me" which Mo. App. 502, 505, 125 S.W. 1188, 1189; Smith v. State Board of
identifies the author as "Dr. Wm. Scopel * * * Discoverer of Natural Medicine of Idaho, 74 Idaho 191, 259 P.2d 1033, 1034-1035(2)];
Immunization, Degree N.D., M.D., Registered to practice medicine and if, in fact, defendant is practicing medicine, he cannot escape the
in the State of Oklahoma," and "Dean of the American College, etc." consequences by cloaking his activities under the pseudonym of
Defendant caused the first two pamphlets to be distributed "to the naturopathy. For, since naturopathy has not been recognized by our
people engaged in the field of healing" and the last one "to the general assembly, it cannot be recognized by our courts. State v.
public." Howard, 216 Iowa 545, 245 N.W. 871, 873-874(2); 92 A.L.R. 174.
Contrast Williams v. Capital Life & Health Ins. Co., 209 S.C. 512,
It is clear that, for protection of the public health and welfare, the 41 S.E.2d 208, 210. And, it may be added that defendant's legal
legislature is empowered to regulate the practice of medicine in such position is not altered or improved by the fact (if so) that there was a
manner as it reasonably may believe to be proper and wise. State v. medical doctor in his clinic and that he (defendant) issued
Smith, 233 Mo. 242, 265-268, 135 S.W. 465, 471-472, 33 prescriptions signed by such doctor. State v. Young, Mo.App., 215
L.R.A.,N.S., 179; State v. Davis, 194 Mo. 485, 499-501, 92 S.W. S.W. 499, 501(7).
484, 488-489, 4 L.R.A.,N.S., 1023; Dent v. State of West Virginia,
129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. In the valid exercise of Without undertaking judicial definition of what constitutes the
such authority, our general assembly has seen fit to require that "(a)llpractice of medicine in Missouri, it may be said that the obvious
persons desiring to practice medicine or surgery in this state, or to intention of Chapter 334 is to embrace "`any person who habitually
treat the sick or afflicted," shall furnish satisfactory evidence of holds himself out as a professor of the art of healing'" [State v.
certain educational qualifications and shall attain a specified average Smith, 233 Mo. loc. cit. 263, 135 S.W. loc. cit. 470; Davidson v.
grade upon medical examination conducted by the State Board of Bohlman, 37 Mo.App. 576, 579]; that the prescription of drugs is not
Medical Examiners [Section 334.040, as amended Laws of 1951, p. essential to the practice of medicine [Stribling v. Jolley, 241
727], and has made it unlawful for any person, other than a Mo.App. 1123, 1136, 253 S.W.2d 519, 524; State v. Evertz,
registered physician (and those exempted by Section 334.150), "to Mo.App., 202 S.W. 614; Davidson v. Bohlman, supra]; and, that
practice medicine or diagnosis (in which defendant purports to be especially qualified and
particularly proficient) is an important and integral part of the
[316 S.W.2d 519] practice of medicine. State v. Smith, supra, 233 Mo. loc. cit. 258-
surgery in any of its departments, or to profess to cure and attempt to 260, 263, 135 S.W. loc. cit. 468-470; State v. Howard, supra, 245
treat the sick and others afflicted with bodily or mental infirmities." N.W. loc. cit. 874; State ex rel. Shenk v. State Board of Examiners
Sections 334.010 and 334.030. The general assembly has recognized in Basic Sciences, 189 Minn. 1, 250 N.W. 353, 354. Defendant's
and made appropriate provision for the licensing of chiropodists in practice encompassing, as it does, diagnosis and treatment of the
Chapter 330, chiropractors in Chapter 331, dentists in Chapter 332, sick, we have no doubt but that it constitutes the practice of medicine
within the contemplation and meaning of Chapter 334. State v.
 P a g e | 23

[316 S.W.2d 520] there" —and in a private school conducted by his brother took what
Smith, supra; State v. Young, supra; State v. Fenter, Mo.App., 204 his counsel liberally construes to have been "a course of study * *
S.W. 733; State v. Evertz, Mo.App., 202 S.W. 614, 616; Davidson v. equal to high school." After "a very short course" at the Palmer-
Bohlman, supra. Consult also O'Bannon v. Widick, 281 Mo. 478, Gregory Chiropractic College in Oklahoma City, he received a
220 S.W. 853, affirming Mo.App., 198 S.W. 432. This conclusion as diploma from that institution in 1922; and, on a date not fixed in the
to naturopathic practice is in accord with the overwhelming weight record, he became "the president of the school," a position still
of authority in other jurisdictions. See Hahn v. State, supra, 322 P.2d
loc. cit. 900-901, and cases there collected. [316 S.W.2d 521]
held by him at the time of trial. Although defendant thought that he
However, defendant argues that, regardless of whether he is had been "licensed under the old Indian Territory Laws" in 1925 "to
practicing medicine, injunctive relief should be denied because (so administer remedies under the Indian Laws," and that he was "a herb
he says) the State failed to prove that he is, in fact, a public nuisance. doctor in Oklahoma"—"under the Territory Law, yes," and although
Unlicensed medical or dental practitioners have been enjoined in he said that he had "my certificate of registration," he did not
many jurisdictions, usually pursuant to statutory authorization produce it, and we are mindful that the Indian Territory had become
[Schlichting v. Texas State Board of Medical Examiners, supra; the State of Oklahoma in 1907, long before defendant landed in this
State ex rel. Board of Medical Registration & Examination v. Hayes, country. But, if defendant's status as "a herb doctor in Oklahoma"
228 Ind. 286, 91 N.E.2d 913; Dean v. State, 233 Ind. 25, 116 N.E.2d remains cloudy and obscure, he established that he was " `a corn
503; Nighohossian v. State, 75 Ariz. 162, 253 P.2d 344, 346; State v. doctor' " [State ex rel. Flickinger v. Fisher, 119 Mo. 344, 353, 24
Fray, 214 Iowa 53, 241 N.W. 663, 81 A.L.R. 286; State v. Howard, S.W. 167, 169, 22 L.R.A. 799] in that state by offering in evidence
214 Iowa 60, 241 N.W. 682; State ex rel. Corley v. Leopold, 170 an Oklahoma license to practice chiropody, which had been issued to
Kan. 613, 228 P.2d 538; State ex rel. Beck v. Cooper, 147 Kan. 710, him in 1935.
78 P.2d 884, 888; Louisiana State Board of Medical Examiners v.
Lensgraf, La.App., 101 So.2d 734, 736; Board of Medical In 1930, defendant obtained from The National College of Massage
Examiners of Utah v. Blair, 57 Utah. 516, 196 P. 221; State Board of and Physio-Therapy in Chicago a certificate that he had "completed
Dental Examiners v. Rymer, Tenn., 303 S.W.2d 959; State v. Boren, a prescribed course in Health Culture and (had) passed a creditable
42 Wn.2d 155, 253 P.2d 939, 944] but sometimes as a public examination in the art of Scientific Swedish Massage, Medical
nuisance per se without specific statutory declaration or Gymnastics, Electro-Therapy, Hydro-Therapy, Swedish Face and
authorization. Kentucky State Board of Dental Examiners v. Payne, Scalp Treatment, Hygiene and the underlying principles of Anatomy
213 Ky. 382, 281 S.W. 188; Commonwealth ex rel. Attorney and Physiology." And, after a one-year "night course" in "eclectic
General v. Pollitt, 258 Ky. 489, 80 S.W.2d 543; Curtis v. Registered medica"—"a system of medicine utilizing all of the natural
Dentists of Oklahoma, 193 Old. 233, 143 P.2d 427. See also Taylor substances * * * barring metallic substances"—the Dearborn College
v. State, Okl., 291 P.2d 1033, 1041, appeal dismissed 352 U.S. 805, of Physicians and Surgeons in Chicago issued a diploma to
77 S.Ct. 33, 1 L.Ed.2d 38; Board of Examiners in Veterinary defendant in 1941 purporting to confer on him the degree of Doctor
Medicine of State v. Tubbs, Okl., 307 P.2d 830, 832; Weber v. of Medicine. Having volunteered on direct examination that
Florida State Board of Optometry, Fla., 73 So.2d 408. Other cases "Dearborn College is one of the oldest medical schools, perhaps, in
support the contention of instant defendant that, since at common the United States," defendant conceded on cross-examination that "it
law the practice of medicine was open to any who desired to follow closed in 1947." There is no suggestion that defendant was licensed
it, subject only to liability for damages resulting from lack of skill to practice any system or branch of medicine in Illinois.
and to the right of the government by quo warranto to prevent
incompetents from following the profession [Aitchison v. State, 204 Defendant said that, in 1941, he "spent nine months at the Gradwal
Md. 538, 105 A.2d 495, 497-498 (2), certiorari denied 348 U.S. 880, School of Medical Technology in St. Louis" but no diploma or
75 S.Ct. 116, 99 L.Ed. 692; Redmond v. State, 152 Miss. 54, 118 So. certificate from that institution was presented. At the conclusion of a
360, 367; State v. Borah, 51 Ariz. 318, 76 P.2d 757, 758(1), 115 one-year "rotating internship," defendant obtained in 1943 a
A.L.R. 254], unlicensed medical practice does not now constitute a Certificate of Internship from Corning Research Hospital in Corning,
nuisance per se, may not be restrained on a mere showing that the Arkansas, an institution which also had closed prior to the time of
practitioner has no license, but should be enjoined only upon the trial. During this period of "internship," defendant lived in Kansas
further showing that such unlicensed practice, in fact, constitutes a City, Missouri, going to Corning "sometimes three and sometimes
public nuisance. People ex rel. Bennett v. Laman, 277 N.Y. 368, 14 four days a week" and at the same time caring for "my business here
N.E.2d 439; State ex rel. La Prade v. Smith, 43 Ariz. 131, 29 P.2d (in Kansas City), making a living." He described his "business" as
718, 92 A.L.R. 168, modified on rehearing 43 Ariz. 343, 31 P.2d "taking care of displaced Japanese sent here from the West Coast to
102, 92 A.L.R. 173; State ex rel. Marron v. Compere, 44 N.M. 414, be placed in industry" and as "general director * * * of the United
103 P.2d 273, 275. Shoe Workers." In August, 1948, the Missouri Naturopathic
Association was incorporated; and, during the same month, the
Defendant's theory that his practice is not a public nuisance because Board of Naturopathic Examiners of that Association issued to
he is (as his counsel phrases it) "educated beyond the bare minimum defendant a certificate bearing, among others, the signature of
prescribed by the statute he is accused of violating [Section defendant, president of the Association, identified as "N.D., D.C.,
334.040(2)], and unchallenged and unimpeached in his competence M.D." Compare Aitchison v. State, supra, 105 A.2d loc. cit. 496-
in the limited system (of naturopathy) which he admittedly 497, 500. Under date of January 15, 1952, the Booker T.
practices" prompts a brief review of the evidence concerning his Washington Chiropractic College in Kansas City, an institute "for
education and qualifications to treat the sick. Before coming to this the G. I. colored boys," issued a diploma to defendant certifying his
country in 1915, defendant went through the fifth or sixth grade in completion of "4,320 class hours." According to defendant, he
school in his native land of Italy—"that is as far as we could go
 P a g e | 24

attended this institute "for four years in night school"—"they had manifested contempt for the process of the court by examination and
such wonderful instructors there, and I wanted to get all that I could treatment of patients while the temporary restraining order was in
out of it." In March, 1955 (after institution of this suit), defendant effect.
procured from the Georgia Board of Naturopathic Examiners a
license authorizing him to practice naturopathy in that State. But, The decree of the trial court is set aside and the cause is remanded
diligent as defendant obviously has been in the collection of with directions to enter a decree finding the issues for plaintiff and
certificates and diplomas, certainly those produced by him neither permanently enjoining defendant in accordance with the prayer of
demonstrate his education "beyond the bare minimum" prescribed plaintiff's petition.
by Section 334.040, subd. 2 nor indicate his competence to practice
medicine. BOHLING and STOCKARD, CC., concur.

It is well-established that equity may enjoin acts or conduct PER CURIAM .the foregoing opinion by BARRETT, C., is adopted
constituting a public nuisance [State ex rel. Crow v. as the opinion of the Court.All concur.

[316 S.W.2d 522]

Canty, 207 Mo. 439, 454-459, 105 S.W. 1078, 1082-1084, 15
L.R.A.,N.S. 747; State ex rel. Thrash v. Lamb, supra, 141 S.W. loc.
cit. 668(3), 670-671(7); State ex rel. Allai v. Thatch, 361 Mo. 190,
234 S.W.2d 1], defined as "an offense against the public order and
economy of the state by unlawfully doing any act or by omitting to
perform any duty which the common good, public decency, or
morals, or the public right to life, health, and the use of property
requires, and which at the same time annoys, injures, endangers,
renders insecure, interferes with, or obstructs the rights or property
of the whole community, or neighborhood, or of any considerable State v. Evertz, Mo., 190 S.W. 287"???
number of persons, even though the extent of the annoyance, injury,
or damage may be unequal or may vary in its effect upon
individuals." State ex rel. Crow v. Canty, supra, 105 S.W. loc. cit.
1080; State by Major ex rel. Hopkins v. Excelsior Powder Mfg. Co.,
259 Mo. 254, 278, 169 S.W. 267, 273, L.R.A.1915A 615; Joyce on
Nuisances, § 5, p. 10. See also State ex rel. Igoe v. Joynt, 341 Mo.
788, 795, 110 S.W.2d 737, 740(12); State ex rel. Jackson v. Lindsay,
85 Kan. 79, 116 P. 207, 208-209, 35 L.R.A.,N.S., 810; Pomeroy's
Equity Jurisprudence (2nd Ed.), Vol. 5, § 1893, p. 4296.

Defendant has arrogated to himself the right to diagnose and treat

human ailments and has undertaken the task of examining and caring
for that most delicate, intricate and mysterious of all mechanisms— 140 F. Supp. 894 (1956)
the human body. The live and continuing interest of the State in
guarding and protecting the sick and credulous from ignorant and KENNETH C. HITCHCOCK, THE MARYLAND
incompetent practitioners is evidenced by the legislative enactments NATUROPATHIC ASSOCIATION, INC., A BODY
in Chapter 334. Consult State v. Smith, supra, 233 Mo. loc. cit. 268, CORPORATE, DENA COHEN, HARRY E. WEST, MARY S.
135 S.W. loc. cit. 472; State v. Davis, supra, 194 Mo. loc. cit. 499, GEBHARDT, LEWIS KERN
92 S.W. loc cit. 488; State v. Fenter, supra, 204 S.W. loc. cit. 734- V.
735. Without holding that unlicensed medical practice constitutes a HENRY T. COLLENBERG ET AL., COMPRISING THE
public nuisance per se, we are satisfied that the record before us,
BOARD OF MEDICAL EXAMINERS FOR THE STATE OF
taken in its totality, conclusively demonstrates defendant's utter
MARYLAND ET AL.
inadequacy and incompetence for the role he has assumed and
satisfactorily establishes that his extensive and unlicensed practice CIV. NO. 7866.
is, in fact, a public nuisance within the above-quoted definition of
that term. So finding, we should not stay the strong arm of equity United States District Court D. Maryland, Civil Division.April
because there is no specific statutory authorization for injunctive 19, 1956.
relief against unlicensed medical practice [Burden v. Hoover, 9
Ill.2d 114, 137 N.E.2d 59, 62; State ex rel. Marron v. Compere, *895 John J. O'Connor, Jr., Baltimore, Md., for plaintiffs.C.
supra, 103 P.2d loc. cit. 278(8)] or because defendant might be Ferdinand Sybert, Atty. Gen. of Maryland, and Stedman Prescott,
prosecuted criminally [State ex rel. Crow v. Canty, supra, 207 Mo. Jr., Asst. Atty. Gen. of Maryland, for defendants.Before SOPER,
loc. cit. 454-459, 105 S.W. loc. cit. 1082-1084; People ex rel. Circuit Judge, and CHESNUT and THOMSEN, District Judges.
Bennett v. Laman, supra; Boggs v. Werner, 372 Pa. 312, 94 A.2d 50;
Heilman, Legal Control of Medical Charlatanism, 22 N.C.L. Rev. THOMSEN, District Judge.The Court of Appeals of Maryland has
23, 35-36], particularly where, as here, defendant has violated the held that naturopathic practitioners are "practicing medicine", as that
applicable statutes openly, arrogantly and persistently and also has term is defined in the State Medical Practice Act, Annotated Code of
 P a g e | 25

Maryland, 1951 ed., Art. 43, Secs. 117-147, and that a person A proviso makes the following exceptions to the foregoing
desiring to engage in the healing art by the practice of naturopathy definition: (1) gratuitous services; (2) resident and assistant resident
may not do so without a license from one of the two State Boards of physicians and students at hospitals in the discharge of their hospital
Medical Examiners. Aitchison v. State, 204 Md. 538, 105 A.2d 495, or dispensary duties and in the offices of physicians; (3) physicians
certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L. Ed. 692. and surgeons from another State when in actual consultation with a
practitioner of this State; (4) commissioned surgeons of the United
The complaint in the instant case is filed by Dr. Kenneth C. States Army, Navy or insane hospital service; (5) opticians; (6)
Hitchcock, a naturopathic practitioner; the Maryland Naturopathic chiropodists; (7) midwives; (8) masseurs or other manual
Association; and two Maryland residents, one Pennsylvania resident manipulators who use no other means; (9) physicians and surgeons
and one Ohio resident, who regularly engage, and intend to continue residing on the border of a neighboring State and authorized to
to engage, naturopathic practitioners of Maryland to assist them in practice medicine and surgery therein, whose practice extends into
diagnosing and treating their physical ills and ailments. They seek a this State; (10) dentists; and (11) the sale by druggists of proprietary
ruling that the Act was improperly construed by the Maryland court, or patent medicines or any official or standard drug or medicine.
or that, as so construed, it violates plaintiffs' rights under Articles 4
and 6 of the Constitution of the United States, the 14th Amendment Before the passage of the Medical Practice Act, the Legislature had
thereto, the anti-trust laws, the Maryland Declaration of Rights and adopted in 1884 special regulations for the practice of dentistry,
the State Constitution. Code Art. 32; it has since prescribed special regulations for the
practice of optometry (1914), osteopathy (1914), chiropody (1916),
The defendants are the members of the two Maryland Boards of chiropractic (1920), and physical therapy (1947). An optometrist
Medical Examiners, the Attorney General of the *896 State, the obtains his license from the Board of Examiners of Optometry, Art.
State's Attorney for Baltimore City and the Police Commissioner of 43, secs. 346-364; an osteopath from the Board of Osteopathic *897
that City. They have moved to dismiss the complaint. Examiners, secs. 428-441; a chiropodist from the Board of
Chiropody Examiners, secs. 442-455; a chiropractor from the State
Art. 43 of the Maryland Code is entitled "Health". The State Medical Board of Chiropractic Examiners, secs. 460-475; and a physical
Practice Act, sec. 117 et seq., was originally adopted in 1888 and has therapist from the State Board of Physical Therapy Examiners, secs.
been amended a number of times.[1] It provides for two Boards of 565-575. Art. 43 also contains provisions regulating funeral directors
Medical Examiners authorized to issue licenses for the practice of and embalmers, pharmacists, barbers, registered nurses, plumbers,
medicine and surgery. The members of one board are appointed by practical nurses, midwives, hairdressers and beauty culturists,
the Medical and Chirurgical Faculty of Maryland, the members of including the practice of trichology.
the other by the Maryland State Homeopathic Medical Society. Sec.
118. A person receiving a license from either board is directed to file No special provisions have been made for the licensing of
it with the Clerk of the Circuit Court, who registers the name of the naturopaths, naturopathic physicians or practitioners of naturopathy,
licensee and the name of the president of the board signing the although numerous bills have been introduced in the Legislature
license. Anyone practicing medicine or surgery in Maryland without since 1939. After the decision of the Court of Appeals in the
having obtained a license from one of these boards is guilty of a Aitchison case in 1954, a bill was introduced in the Maryland
misdemeanor; so is a person who practices medicine or surgery Legislature in 1955, known as House Bill 129, which, if it had been
without being registered. Secs. 126, 127, 128, 131, 136. enacted, would have added twelve new sections to Art. 43, creating a
Board of Naturopathic Examiners, providing for the licensing of
Sec. 138 defines "practicing medicine" as follows: naturopathic physicians, and relating generally to the practice of
naturopathy. That bill contained the following definition of
naturopathy:
 

"Any person shall be regarded as practicing medicine within the  

meaning of this sub-title who shall append to his or her name the
"For the purposes of this sub-title naturopathy is hereby defined to
words or letters `Dr.,' `Doctor,' `M.D.,' or any other title in
be one of the healing arts whose scope, purposes and methods of
connection with his name, with the intent thereby to imply that he or
practice are as follows: Naturopathy is a system of healing for the
she is engaged in the art or science of healing, or in the practice of
prevention, diagnosis, care and treatment of injuries, deformities,
medicine in any of its branches, or who shall operate on, profess to
ailments, diseases and abnormalities of the human mind and body by
heal, prescribe for, or otherwise treat any physical or mental ailment
means of such arts, sciences, methods and agencies of healing as
or supposed mental ailment of another, or who shall for hire or for
make use of the healing properties and principles inherent in air,
any gratuity or compensation, either directly or indirectly to him or
sunshine, light, electricity, heat, cold, climate, water, earths,
her paid, undertake by any appliance, operation or treatment of
exercise, work, rest, recreation, sweats, baths, packs, irrigations,
whatever nature, to cure, heal or treat any bodily or mental ailment
inhalations, manipulations, corrective gymnastics, psychology,
or supposed ailment of another; or who for any hire, gratuity or
physics, mechanics, bio-chemistry, dietetics, enzymes, vitamins,
compensation, either directly or indirectly to him or her paid, by or
minerals, tissue salts and substances naturally found in or required
for any patient, shall undertake to treat, heal, cure, drive away or
by the body, oxygen, ozone, herbs, external applications, apparatus,
remove any physical or mental ailment, or supposed ailment of
appliances, mental hygiene, physical culture, first aid, hygiene and
another, by mental or other process, exercised or invoked on the part
sanitation; provided, however, that except as hereinbefore specified,
of either the healer or the patient or both; * * *."
the practice of naturopathy shall not include the use of drugs,
 P a g e | 26

surgery, destructively radioactive substances, or x-rays, except for State's Attorney from proceeding with the prosecution on that
diagnostic purposes." charge.

It is apparent from this definition that the practice of naturopathy The complaint in this case contains forty-four numbered paragraphs,
comes within the definition of "practicing medicine" in sec. 138, with many sub-paragraphs, and twenty-five, now twenty-six,
quoted above. separate prayers for relief. Aside from the matters set out above, it
contains an elaborate statement of the history and principles of
Dr. Hitchcock holds a Bachelor of Arts degree from the University naturopathy, which amplifies the statement in House Bill No. 129,
of Florida (1918) and a Doctor of Naturopathy degree from the quoted above, and makes it even more clear that the practice of
Blumer College of Naturopathy, of Hartford, Connecticut (1921). He naturopathy comes within the definition of "practicing medicine" in
was granted a license to practice naturopathy by the Connecticut Art. 43, Sec. 138 of the Maryland Code.
State Board of Naturopathic Examiners in 1923 and similar licenses
by the Florida State Board of Naturopathic Examiners in 1939 and The salvos fired by the plaintiffs against the Maryland Act raise a
the South Carolina Board of Naturopathic Examiners in 1932.[2] He great variety of points. Many of them deal with the proper
has practiced naturopathy openly in Maryland since 1939. He is construction of the Act and with the contention that it violates the
president of the Maryland Naturopathic Association, which, in 1948, Maryland Declaration of Rights and the State Constitution. Those
filed a bill in equity against the Board of Medical Examiners in the questions cannot be considered in this case. They do not involve
Circuit Court No. 2 of Baltimore City for an injunction and a decree rights claimed under the Constitution and laws of the United States;
declaring that the system of healing known as naturopathy is not there is no requisite of diversity of citizenship to give this court
included in the practice of medicine as regulated by the State jurisdiction of non-Federal questions; and if there were, we would be
Medical Practice Act. A decree dismissing the bill was affirmed by bound by the decision of the Court of Appeals of Maryland, which
the Court of Appeals of Maryland on the ground that the association has passed on all of them. Aitchison v. State, 204 Md. 538, 105 A.2d
had no property interests which might have been affected by any of 495, certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L. Ed. 692;
the alleged acts of the defendants. Maryland Naturopathic *898 Watson v. State of Maryland, 218 U.S. 173, 175, 177, 30 S. Ct. 644,
Association v. Kloman, 191 Md. 626, 628, 62 A.2d 538. 54 L. Ed. 987.

Thereupon Dr. Hitchcock himself filed a bill in equity against the We have jurisdiction, however, to consider plaintiffs' contentions
Board of Medical Examiners, the Police Commissioner and the that fundamental rights guaranteed by the Federal Constitution are
State's Attorney for a declaratory decree and injunction. The decree violated. Watson v. State of Maryland, 218 U.S. 173, 175, 177, 30 S.
dismissing that bill was affirmed by the Court of Appeals because Ct. 644, 54 L. Ed. 987; Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60
"`the general rule is that equity will not interfere to prevent the L. Ed. 131; Crane v. Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed.
enforcement of a criminal statute even though unconstitutional. * * * 348; McNaughton v. Johnson, 242 U.S. 344, 37 S. Ct. 178, 61 L. Ed.
The mere existence of a criminal statute is not such a threat as to 352. Cf. Watson v. Buck, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed.
present a justiciable controversy.'" Hitchcock v. Kloman, 196 Md. 1416. The disagreement between the parties is no longer nebulous or
351, 356, 76 A.2d 582, 584. contingent.

Dr. Hitchcock then applied in writing to the State Board of Medical The individual plaintiffs, other than Dr. Hitchcock, contend that the
Examiners for a license to practice naturopathy. The Secretary of the enforcement of the Maryland law is tantamount to a prohibition of
Board in a letter dated July 1, 1954, replied, in part, as follows: the practice *899 of naturopathy in Maryland by the only
practitioners properly trained to administer "this form of health
  services", deprives them of the benefits of naturopathy in Maryland
which are enjoyed by the residents of other States, threatens their
"* * * We are informed by the office of the Attorney General that health and happiness, causes them irreparable harm, injury and
the Court of Appeals did not mean to imply that the State Board of damage, and violates their personal and civil rights by preventing
Medical Examiners is authorized to license Naturopaths as such them from selecting the system of the healing art which they desire,
without regard to the requirements of the Medical Practice Act. In and from deriving "the benefits accruing from the non-medical and
non-surgical system known as naturopathy". But the Maryland
order to be licensed by this Board it is necessary that you meet the
statute does not prevent plaintiffs from applying the tenets of
requirements for the licensing of those who desire to practice
naturopathy in their treatment of themselves and their families, nor
medicine." from receiving any naturopathic treatment which is gratuitously
rendered, nor from receiving naturopathic treatment for a fee
An amendment to the complaint in the instant case alleges that since provided the naturopath or naturopathic practitioner meets the
the filing of the original complaint Dr. Hitchcock has been arrested qualifications established by the State of Maryland as necessary for
by officers of the Police Department of Baltimore City on the charge anyone who undertakes to heal the public for a fee. The Maryland
of practicing medicine without a license. After waiving a law does not prohibit the practice of naturopathy. Any person who
preliminary hearing, he was released on bail and held for the action has met the qualifications necessary to secure a license to practice
of the grand jury. The grand jury has returned a presentment, but the medicine, i. e. to engage in the art or science of healing, may apply
State's Attorney has delayed preparing an indictment because of the the principles of naturopathy in his practice. Maryland has simply
pendency of this case, and Dr. Hitchcock is now on bail. An established certain requirements which must be met by any person
additional prayer has been added seeking an injunction against the who undertakes to practice medicine, as that term is defined in Art.
43, sec. 138, which includes "not only the application of medicine to
 P a g e | 27

patients, but any practice of the art of healing disease and preserving 47 S. Ct. 122, 71 L. Ed. 331; Semler v. Oregon State Board of
the health other than those special branches of the art that were Dental Examiners, 294 U.S. 608, 55 S. Ct. 570, 79 L. Ed. 1086;
expressly excepted." Aitchison v. State, supra, 204 Md. at page 538, Garner v. Board of Public Works of City of Los Angeles, 341 U.S.
105 A.2d at page 499. The Maryland Court cited in support of this 716, 71 S. Ct. 909, 95 L. Ed. 1317.
decision Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E.
893, and Collins v. Texas, 223 U.S. 288, 32 S. Ct. 286, 56 L. Ed. Plaintiffs claim that the Maryland Medical Practice Act, as
439, and might have cited others, e. g. State v. Henning, 83 Ohio interpreted and enforced by the Maryland courts and by the
App. 445, 78 N.E.2d 588, appeal dismissed 150 Ohio St. 48, 80 defendants herein, abridges their privileges and immunities, deprives
N.E.2d 164; Louisiana State Bd. of Medical Examiners v. Fife, 162 them of property without due process of law, and denies them the
La. 681, 111 So. 58, 54 A.L.R. 594, affirmed sub nom Fife v. State equal protection of the laws, in violation of Art. 4, Sec. 2, and Art. 6
of Louisiana, 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324. Decisions of the Constitution of the United States, and Sec. 1 of the 14th
to the contrary in other states, cited by plaintiffs herein, cannot affect Amendment. They seek a declaratory decree and an injunction under
our decision, since we are bound by the contruction of the statute Title 28 U.S.C.A. §§ 1331, 1332, 1337, 1343, 2201 and 2202, and
given by the Maryland court. under the civil rights acts, Title 42 U.S.C.A. §§ 1983-1985. They
contend that the act is an invalid exercise of the police power, and is
Requirements similar to the Maryland requirements have been arbitrary, unreasonable and discriminatory in that (1) it arbitrarily
repeatedly approved, for the reasons stated in the leading case of requires naturopaths to pass examinations in non-naturopathic
Dent v. State of West Virginia, 129 U.S. 114, at page 122, 9 S. Ct. subjects, (2) prohibits the practice of naturopathy without showing it
231, at page 233, 32 L.Ed. 623: to be detrimental to the public or inherently harmful, and (3) unfairly
discriminates against naturopaths by conferring exclusive
  jurisdiction over them on their medical competitors.

"Few professions require more careful preparation by one who seeks They also claim that the Maryland law discriminates against
to enter it than that of medicine. It has to deal with all those subtle naturopaths in that it contains special provisions for the licensing of
and mysterious influences upon which health and life depend, and osteopaths, physical therapists, chiropractors, optometrists and
requires not only a knowledge of the properties of vegetable and chiropodists, and does not contain similar provisions for naturopaths.
mineral substances, but of the human body in all its complicated
parts, and their relation to each other, as well as their influence upon These and similar contentions have been before the courts on many
the mind. The physician must be able to detect readily the presence occasions. In Watson v. State of Maryland, 218 U.S. 173, at page
of disease, and prescribe appropriate remedies for its removal. Every 176, 30 S. Ct. 644, at page 646, 54 L. Ed. 987, involving the very
one may have occasion to consult him, but comparatively few can statute at issue here, the Supreme Court said:
judge of the qualifications of learning and skill which he possesses.
Reliance must be placed upon the assurance given by his license,  
issued by an authority competent to judge in that respect, that he
"It is too well settled to require discussion at this day that the police
possesses the requisite qualifications. Due consideration, therefore,
power of the states extends to the regulation of certain trades and
for the protection of society may well induce the state to exclude
callings, particularly those which closely concern the public health.
from practice those who have not such a license, or who are found
There is perhaps no profession more properly open to such
upon examination not to be fully qualified."
regulation than that which embraces the practitioners of medicine.
Dealing, as its followers do, with the lives and health of the people,
That some other states permit the licensing of naturopaths as such, and requiring for its successful practice general education and
without requiring them to meet the qualifications which Maryland
technical skill, as well as good character, it is obviously one of those
requires, does not mean that the Maryland act abridges the rights of
anyone, whether a Maryland *900 resident or not, who would like to vocations where the power of the state may be exerted to see that
be treated in Maryland by a naturopath who has not met the only properly qualified persons shall undertake its responsible and
Maryland requirements. The fact that one or more states may have difficult duties."
lowered the bars which protect the public from ill-trained
practitioners of the healing art does not render other states impotent The plaintiff in that case argued that the Maryland statute denied him
to protect their own residents. Regulations of a particular trade or the equal protection of the laws, in making unreasonable and
business essential to the public health and safety are within the arbitrary distinctions in the classification of physicians, and in
legislative capacity of the state in the exercise of its police power, making unreasonable omissions of certain classes from the
and unless such regulations are so unreasonable and extravagant as requirements of the act. The Supreme Court rejected this contention,
to interfere with property and personal rights of citizens applying the rule that *901 "the classification of the subjects of such
unnecessarily and arbitrarily, they are within the power of the state. legislation, so long as such classification has a reasonable basis, and
Williams v. State of Arkansas, 217 U.S. 79, 30 S. Ct. 493, 54 L. Ed. is not merely arbitrary selection without real difference between the
673. This principle was applied to the practice of medicine in a case subjects included and those omitted from the law, does not deny to
involving the Maryland Medical Practice Act. Watson v. State of the citizen the equal protection of the laws." 218 U.S. at page 178,
Maryland, 218 U.S. 173, 178, 30 S. Ct. 644, 54 L. Ed. 987. See also: 30 S.Ct. at page 646.
Dent v. State of West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed.
623; Hawker v. People of State of New York, 170 U.S. 189, 18 S. Discussing the exceptions in what is now Art. 43, Sec. 138 of the
Ct. 573, 42 L. Ed. 1002; Graves v. State of Minnesota, 272 U.S. 425, Maryland Code, the Supreme Court said:
 P a g e | 28

  The court cited, inter alia, Johnson v. State, Tex.Civ.App., 267 S.W.
1057, and State v. Morrison, 98 W.Va. 289, 127 S.E. 75.
"* * * We shall not take occasion to consider each of these
exceptions. A reading of them makes it manifest that they are not In Aitchison v. State, supra, the Maryland court said:
without reason. Before a law of this kind can be declared violative of
the 14th Amendment as an unreasonable classification of the  
subjects of such legislation because of the omission of certain
classes, the court must be able to say that there is `no fair reason for "It is beyond question that the State has the power to regulate any of
the law that would not require with equal force its extension to the special systems or branches of the medical art independent of the
others whom it leaves untouched.' Such was the expression of this general practice of medicine. The regulations adopted by the State,
court in Missouri, Kansas & Texas R. Co. [of Texas] v. May, 194 in the exercise of the power to regulate the treatment of disease, need
U.S. [267] 269, 24 S. Ct. 638, 48 L.Ed. [971] 972, quoted with not be uniform with respect to all methods and systems of practice,
approval in Williams v. [State of] Arkansas, supra." 218 U.S. at page but distinctions may be made and schools or methods of practice
179, 30 S.Ct. at page 647. may be exempted from the regulations or subjected to peculiar
regulations as long as the discrimination is not arbitrary or
Other cases have applied the same principles to complaints by unreasonable." 204 Md. at page 549, 105 A.2d at page 500, citing
chiropractors and naturopaths, who complained because special Crane v. Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed. 348, and a
provisions were not made for them. Aitchison v. State, 204 Md. 538, number of State court cases.
105 A.2d 495, certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L.
Ed. 692; Louisiana State Bd. of Medical Examiners v. Fife, 162 La. The special provisions of Art. 43 of the Maryland Code for the
681, 111 So. 58, 54 A.L.R. 594, affirmed sub nom Fife v. State of practice of optometry, osteopathy, chiropody, chiropractic and
Louisiana, 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324, and cases physical therapy limit in every case the type of treatment which the
cited therein. practitioner is authorized to administer; with respect to optometry
and chiropody, the ills and diseased conditions which may be treated
In Louisiana State Board v. Fife, supra, defendant chiropractors are strictly limited; and physical therapists may treat under their
contended that they were deprived of liberty and property without license only patients diagnosed and referred by licensed medical
due process of law because they were required to stand an doctors. The Maryland legislature had the right to provide special
examination in surgery and materia medica. They complained that regulations for these groups and to refuse to provide similar special
those who practice chiropractic have no need for those subjects, regulations for naturopaths, who undertake to treat any and all
which bear no relation to that system. The Louisiana court observed diseases in a wide variety of fashions.
that no person has a natural or absolute right to practice medicine or
surgery, but that it is a right granted upon conditions and that a state, Plaintiffs contend that the Act is void because of vagueness in that it
under its police power, may regulate within reasonable bounds, for does not stipulate which of the two State Boards of Medical
the protection of the public health, the practice of either, by defining Examiners "shall have jurisdiction over this system of healing". The
the qualifications which one must possess before being admitted to Act provides for two boards, one appointed by the Medical and
practice. The court recognized that the legislature, in defining the Chirurgical Faculty and the other appointed by the Homeopathic
qualifications required, cannot prescribe, as a condition of the right Society. Sec. 118. A person who wishes to obtain a license to
to practice, knowledge of a subject which bears no relation to the practice medicine in Maryland may apply to either board. The fact
practice of medicine; but the court held that this does not mean that that naturopaths, such as the plaintiff Hitchcock, along with all
the legislature must make requirements such as to provide for every others who desire to practice medicine in Maryland, are given the
school of medicine that may exist, by requiring of those belonging to choice of applying to either one of two boards does not deprive them
each particular school a knowledge only of those subjects which the of any rights and privileges they would have if the statute designated
theory of healing advocated and put in operation by each school the particular board to which they must apply, or if the statute
requires. Were it otherwise, the legislature would be greatly provided for a single board.
hampered in the exercise of its power to protect the general health
and the public from imposition and fraud. This is good law and good
Plaintiffs contend that the Maryland act, as interpreted by the
sense in Maryland as well as Louisiana.
Maryland court, violates the anti-trust laws, Title 15 U.S.C.A. §§ 1-
27, 44, in that it grants the exclusive privilege of practicing medicine
Another contention of defendants in the Louisiana case was that and surgery to persons licensed by the State Board of Medical
since osteopaths, dentists, chiropodists and trained nurses were Examiners, and thus establishes medicine as the preferred State
exempted from the operation of the general law and were not system of healing, and curbs the progress of the art of maintaining
required to take a full course in materia medica, surgery, etc., the health in the fields not specially regulated by the statute. The
general law was unconstitutional because it discriminated against complete answer to this contention is that the anti-trust laws deal
chiropractors by not granting them similar privileges. The Louisiana with individual activity and not with State activity, Parker v. Brown,
court held, however, that since the legislature is not called upon to 317 U.S. 341, 350, 63 S. Ct. 307, 87 L. Ed. 315; whereas all of the
recognize every school of medicine and to deal with it as such, matters charged in the complaint as violative of the anti-trust laws
defendants could not complain, on the ground of being unjustly are regulations prescribed by the Maryland legislature.
discriminated against, that the legislature had not deemed it proper to
recognize their school of medicine and make special provision for
The amended complaint alleges no facts entitling the plaintiffs to
those desiring to practice that system by prescribing a *902 course of
any relief in this case, and must be dismissed, with cost
study in accord with the theories which it holds for restoring health.
 P a g e | 29

naturopathy in this State; Provided, however, that any person now

authorized to practice naturopathy in South Carolina who is a
DR. M.S. DANTZLER, INDIVIDUALLY AND AS graduate of an accredited college for pre-medical training and who
PRESIDENT OF THE SOUTH CAROLINA NATUROPATHIC has, in addition thereto, graduated from a medical college recognized
PHYSICIANS ASSOCIATION, ET AL., PLAINTIFFS, at the time of his graduation by the state in which it was located, and
who has heretofore for a period in excess of five years engaged in
V.
the practice of medicine in the State of South Carolina under the
T.C. CALLISON, ATTORNEY GENERAL AT SOUTH
supervision of a licensed medical doctor by special request or by
CAROLINA, DEFENDANT.17200 special permission of the State Board of Medical Examiners, or
Supreme Court of South Carolina.August 20, 1956. agents thereof, shall be examined by the State Board of Medical
Examiners on the same basis as other applicants to the Board are
*76 *77 *78 *79 Messrs. Price & Poag, of Greenville, for examined, and upon the making of a passing grade on this
Plaintiffs.Messrs. T.C. Callison, Attorney General, and James S. examination, shall be licensed to practice medicine in this State.
Verner, Assistant Attorney General, of Columbia, for Defendant.*80
Messrs. Price & Poag, of Greenville, for Plaintiffs, in Reply. "Section 3. Any person violating the provisions of Section 2 of this
act shall, upon conviction, be guilty of a misdemeanor and be fined
COMPLAINTPlaintiffs complaining of the defendant allege: not exceeding five hundred dollars *82 or be imprisoned for a period
of not exceeding one year or both in the discretion of the court.
1. Plaintiffs are citizens of the United States of America and the
State of South Carolina and are officers and members of the South "Section 4. All acts or parts of acts inconsistent herewith are hereby
Carolian Naturopathic Association, Inc., a Corporation created under repealed.
the laws of the State of South Carolina. This action is brought by
plaintiffs in their official capacity, and also individually for the "Section 5. This act shall take effect upon its approval by the
benefit of themselves and all members of the Association and all Governor. [In the Senate House the 23rd day of February In the Year
duly licensees who are practicing in the State under a duly issued of Our Lord One Thousand Nine Hundred and Fifty-six.]
and lawful license. Membership in the Association is confined solely
and exclusively to regularly licensed Naturopathic Practitioners in
3. Plaintiffs allege that the act in question is in violation of their
South Carolina. Doctors M.S. Dantzler and J.B. Branyon and W.T.
rights as citizens of the United States of America and of South
Bidwell are the Board of Examiners. All of the plaintiffs as
Carolina as provided in the Fifth and Fourteenth Amendments of the
individuals have been naturopathic physicians under the law of
United States Constitution in that it deprives the plaintiffs of their
South Carolina since 1937. All of the licensed Naturopathic
property and property rights without due process of law, and denies
Physicians in south Carolina, except the last ten licensees, were
them of the equal protection of the laws and is arbitrary and
admitted to practice in compliance with the law prior to June, 1946.
discriminatory in that it singles out naturopathy, one of a number of
The last ten practitioners were admitted under the amended
special practitioners in the art of healing and abolishes their
Naturopathy Act of 1949, which greatly increased the education and
profession only.
professional qualification of applicants.
4. Plaintiffs further allege that the Act in question violiates the
2. The defendant, Honorable T.C. Callison, is Attorney General of
following provisions of the Constitution of the State of South
South Carolina, and is made a party defendant in *81 pursuance of
Carolina: Article 1, Section 5; Article 1, Section 17, and Section 17,
Section 10-2008 of the South Carolina Code of 1952, as this is an
Article 3 in that said Act deprives plaintiffs of their property and
action seeking a declaratory judgment as to the rights of the
property rights without due process of law and denies them of the
plaintiffs and to declare unconstitutional the Act of the General
equal protection of the laws and is arbitrary and discriminatory in
Assembly of South Carolina as follows:
that it singles out naturopathy, one of a number of special
practitioners in the art of healing and abolishes their profession only.
"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws With reference to Section 17, Article 3 of the Constitution of South
Of South Carolina, 1952, Relating To The Practice of Naturopathy; Carolina of 1895 plaintiffs allege that the Act violates this Section in
To Make It Unlawful For Certain Persons To Practice Naturopathy that it relates to more than one subject which is not expressed in the
In This State; And To Provide Penalties For Violating The title. The proviso in the Act deals with a specific provision for the
Provisions Of This Act." licensing of medical doctors, which in no way has any connection
with the title of the Act and such proviso discriminates within the
The body of the Act reads as follows: Naturopathic Practitioners.

"Be it enacted by the General Assembly of the State of South 5. Plaintiffs further allege that all of the Naturopathic Physicians in
Carolina: South Caarolina entered the practice as a *83 means of livelihood for
themselves and to support their families. They have invested much
"Section 1. Sections 56-901 through 56-919, Code of Laws of South time and great sums of money, more or less, in perfecting
Carolina, 1952, are hereby repealed. themselves for the practice of their profession. Section 56-901 of the
South Carolina Code of 1952 defines Naturopathy as follows:
"Section 2. It shall be unlawful for any person whether heretofore
licensed or not under the laws of this or any other state to practice
 P a g e | 30

"`Naturopathy' is hereby defined to mean the use and practice of 3. That he admits the allegations of Paragraph 2 of the Complaint.
phychological, mechanical and material health sciences to aid in
purifying, cleaning and normalizing human tissues for preservation 4. That he denies the allegations of Paragraphs 3 and 4 of the
or restoration of health according to the fundamental principles of Complaint.
anatomy, physiology and applied psychology, as may be required.
Naturopathic practice employs, among other agencies, heat, light, 5. Answering Paragraph 5 of the Complaint upon information and
water, electricity, psychology, diet, massage and other manipulative belief, this [BAD TEXT] admits that the plaintiffs are claiming to be
methods." [BAD TEXT] physicians practicing in South Carolina as a means of
[BAD TEXT] and as a means of support to their families. The
Naturopathy has been recognized by the Legislative Law of South defendant admits that Sec. 56-901 of the 1952 Code of the State as
Carolina since the Medical Practice Act of March 10, 1920, and to amended, reads as set out and that Naturopathy has been recognized
do the things permitted under the Act of necessity requires the use of in various forms in the State since 1920; further, upon information
equipment for the employment of such agencies as heat, light, water, and belief, this defendant admits the use of such equipment, as is
electricity, psychology, diet, massage and other manipulative referred to in Paragraph 5 of the Complaint, is employed by
methods and all of the plaintiffs and those whom they represent have Naturopaths but has no knowledge of the sums invested therein.
spent large amounts of money, more or less, in the purchase of
necessary equipment, which they use in the practice of their *85 6. This defendant admits so much of Paragraph 6 of the
profession. Complaint as alleges that the Act in question destroys the practice of
Naturopathy as a separate cult, branch or profession of the healing
6. Plaintiffs recognize the right of the Legislature to regulate their art, and admits that it makes unlawful certain acts by plaintiffs,
profession by the passage of any regulatory methods within the otherwise lawful, but lawful only to those qualified as general
constitutional limits. Plaintiffs allege, however, that the above medical prectitioners, or those qualified in specialized branches of
entitled Act destroys their profession and means of livelihood and the healing arts under the requirements of our laws, but the
would make acts which are perfectly lawful to become criminal acts defendant alleges that the provisions of the said Act, the purpose of
subject to punishment by the court upon conviction. The Act in which is to protect the public's health and welfare, are within the
question is prohibitory and not regulatory in a field of Medical police power of the State, are a valid exercise of said police power,
practice and/or art of healing that could be and can be properly and are neither arbitrary nor discriminatory.
regulated.
7. Further answering the Complaint, this defendant alleges that the
7. That plaintiffs are entitled to have the Supreme Court declare their State has a vital concern in the health of everyone within its borders,
rights and to pass upon the constitutionality of the above statute and the practice of medicine and healing being one of the fields
to further declare the same null and *84 void because of its violation peculiarly subject to control and regulation under the police powers
of plaintiffs' constitutional rights. of this and every other government. That the practice of medicine
and of the healing arts can be lawfully prohibited by the State except
Wherefore, plaintiffs pray for relief as follows: upon the conditions imposed by it, which said conditions are subject
to change from time to time to keep pace with the advance of
(1) A judgment of this Court declaring the aforesaid Act to be educational and scientific progress, the plaintiffs and no other
unconstitutional and therefore null and void; persons having any fundamental or property rights to engage in any
form of the healing arts free from regulation, such as is true of those
(2) For a judgment by the Court declaring the rights of the plaintiffs employments and trades not peculiarly within the concern of the
and to order and command the Attorney General and all law police power.
enforcement officers in the State of South Carolina not to in any
manner interfere with the plaintiffs in the practice of their lawful 8. That the plaintiffs have no contractual or property right granted to
profession; them by any pre-existing laws of this State allowing the practice of
Naturopathy or granting licenses to them which are not subject to
(3) For such other and further relief as the plaintiffs may be entitled modification or denial in the proper exercise of the police power of
to under the circumstances of this case. the State in its promotion of the public health, plaintiffs' licenses
creating in them no permanent or vested interest, such licenses not
being within the inhibition against impairment of contract, and being
ANSWER revocable under the police power at the discretion of the sovereignty.

The Defendant, T.C. Callison, Attorney General of the State of 9. That the mere fact that the plaintiffs may suffer pecuniary injury
South Carolina, answering the Complaint herein, respectfully shows because of the proper exercise of the police *86 power of the State in
to the Court: forbidding the practice of Naturopathy in South Carolina, does not
render the Act unconstitutional, because all private property is held
1. That he denies all allegations of the Complaint not hereinafter and all callings are exercised in this State subject to the proper
admitted, qualified or explained. exercise of the police power of the State.

2. That, upon information and belief, he admits the allegations of 10. That the prohibition of the practice of Naturopathy as a separate
Paragraph 1 of the Complaint. branch of the healing art is a proper application of the police power
 P a g e | 31

of the State to a particular class practicing arts peculiar to naturopathy in this State; Provided, however, that any person now
themselves, there being no means of any practical regulation due to authorized to practice naturopathy in South Carolina who is a
the close and confidential nature of the relationship between the graduate of an accredited college for pre-medical training and who
Naturopath and patient with the consequent impossibility of has, in addition thereto, graduated from a medical college recognized
supervising and confining such practice within lawful bounds. at the time of his graduation by the state in which it was located, and
who has heretofore for a period in excess of five years engaged in
11. That the Act in question does not prevent plaintiffs from the practice of medicine in the State of South Carolina under the
practicing any lawful branch or type of healing formerly open to supervision of a licensed medical doctor by special request or by
them as Naturopaths, as they may still, upon qualifying as medical special permission of the State Board of Medical Examiners, or
doctors under the laws of this State, practice all lawful forms of agents thereof, shall be examined by the *88 State Board of Medical
healing and treatment, the Act making special provisions for those Examiners on the same basis as other applicants to the Board are
who have had proper medical training to take the examinations examined, and upon the making of a passing grade on this
provided for medical doctors, with other laws leaving open the examination, shall be licensed to practice medicine in this State." 49
taking of these examinations by those who qualify themselves St. at Large, p. 1624.
therefor hereafter.
Section 3 provides for the punishment of the violation of the Act.
12. That the Act attacked by the plaintiffs applies equally to all Section 4 provides that all Act or parts of Acts inconsistent therewith
persons now practicing Naturopathy and that said classification is were repealed.
reasonable, operating alike on all within its provisions. That the Act
is not discriminatory and does not deny the equal protection of the The plaintiffs seek a declaratory judgment as to their rights and
law to those within the class upon which it operates, there being no contend that the Act is unconstitutional in that it violates the Fifth
duty upon the State to recognize all peculiar schools and groups of and Fourteenth Amendments of the Constitution of the United States
those seeking to practice healing arts. by depriving them of their property and property rights without due
process of law and denies them the equal protection of the law; is
13. That the practice of medicine is not a Federal privilege or arbitrary and discriminatory in that it singles out naturopathy, one of
immunity within the purview of the Fourteenth Amendment to the the arts of healing, and abolishes its practice. They further allege that
Constitution of the United States, and is peculiarly within the control the Act is in violation of Article 1, § 5; Article 1, § 17; and Article 3,
of the State and not of the United States. § 17, of the Constitution of South Carolina in that it deprives them of
their property and property rights without due process of law; denies
14. That the title of the Act clearly shows its purpose and discloses them equal protection; is arbitrary and discriminatory; and that the
to anyone interested that it is prohibiting the practice *87 of Act relates to more than one subject which is not expressed in the
Naturopathy in this State, relating to that one subject or matters fully title. It is further contended that the plaintiffs entered the practice of
germane thereto, in accordance with the provisions of Article III, naturopathy as a means of a livelihood; they have invested much
Section 17 of the Constitution of this State. time and great sums of money; and that naturopathy has been
recognized by the General Assembly of South Carolina since 1920;
and it is finally contended that the Act is prohibitory and asks that it
Wherefore, this defendant prays that the Honorable Court do adjudge be declared null and void.
and decree that the Act in question is constitutional and valid in all
respects and binding upon the plaintiffs and all others seeking to
practice any form of the so-called Naturopathic Profession. The answer admits that the individual plaintiffs have been practicing
naturopathy since their admission and admits the passage of the Act,
however, it denies that the Act is in violation of either the State or
August 20, 1956. Federal Constitutions. It is also admitted that by the Act the practice
of naturopathy, as a separate cult, is prohibited; and that it makes
T.B. GRENEKER, Acting Associate Justice. unlawful certain acts by the plaintiffs, otherwise lawful, but lawful
only to those coming under the provisions of the law. Defendant *89
This action was brought in the original jurisdiction of this Court, and contends that the purpose of the Act is to protect the public health
as the pleadings will be printed, we only state very briefly the and welfare and is a valid exercise of the police power of the State,
allegations thereof. and denies that it is either arbitrary or discriminatory.

The plaintiffs allege that the individual plaintiffs are all licensed We think it may be fairly stated that the questions involved are:
naturopathic physicians and were admitted to practice in compliance
with the law prior to June, 1946, and that the last ten practitioners (A) Is the title of the act defective so as to render it unconstitutional
admitted in the State were admitted under the amended act of 1949. in view of Section 17 of Article 3 of the South Carolina
During the 1956 Session of the General Assembly of South Carolina, Constitution?
the following act was adopted:
(B) Is the Act violative of either the Federal or State Constitutions?
"Section 1. Sections 56-901 through 56-919, Code of Laws of South
Carolina, 1952, are hereby repealed. (C) May the State, under the police power, so regulate?

"Section 2. It shall be unlawful for any person whether heretofore The title of the Act in question is as follows:
licensed or not under the laws of this or any other state to practice
 P a g e | 32

"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws to assume the duties of legislation, and neither will it declare an act
Of South Carolina, 1952, Relating To The Practice Of Naturopathy; of the legislature unconstitutional *91 unless the language of the Act
To Make It Unlawful For Certain Persons To Practice Naturopathy itself plainly and unmistakably reveals its conflict with the
In This State; And To Provide Penalties For Violating The Constitution.
Provisions Of This Act."
The authorities seem to abundantly differ with plaintiffs' contention,
Section 17, Article 3 of the South Carolina Constitution reads as and we so hold.
follows:
The plaintiffs contend that the main question for consideration is:
"Every Act or Resolution having the force of law shall relate to but "Does the Act deprive the plaintiffs of their property rights without
one subject, and that shall be expressed in the title." due process of law, and does the Act deny to them equal protection
of the law?"
The purpose of this section is to prevent deception of the public and
to prevent insertion of matters not germane to the general subject. "Naturopathy is one of a number of fields in the art of healing" * * *
Furman v. Willimon, 106 S.C. 159, 90 S.E. 700; Miles Laboratories and has been recognized "as accepted processes of preventive and
v. Seignious, D.C., 30 F. Supp. 549. curative medicine," and every person so practicing, after being duly
licensed, "stands for all purposes in the position of a physician in the
This section is to be construed with great liberality. Gasque v. Nates, orthodox fields of medicine * * *." Williams v. Capital Life &
191 S.C. 271, 2 S.E. (2d) 36. Health Insurance Co., 209 S.C. 512, 41 S.E. (2d) 208, 210.

This requirement should not be enforced in any narrow or technical From the record, as well as from an independent examination, we
spirit. It was adopted to prevent certain abuses and it should be conclude that Naturopathy is of comparatively recent recognition, so
reasonably and liberally construed on the one hand so as to guard far as South Carolina is concerned. The area of its field of practice
against these abuses, and on the other hand so as not to embarrass or seems to have increased much more rapidly than the required
obstruct *90 needed legislation. Alley v. Daniel, 153 S.C. 217, 150 educational qualifications of those who profess to practice. Indeed, it
S.E. 691. is rather difficult for the ordinary layman to understand how one
may be permitted to practice "the use and practice of physotherapy,
There is no doubt in the mind of this Court as to the validity of the minor surgery, obstetrics, gynecology, autotherapy and biologicals,"
title of the Act, but even if there were some doubt, a statute should or to "purifying, cleansing and normalizing human tissues for
be upheld if possible, doubtful cases being resolved in its favor. preservation or restoration of health, according to the fundamental
Alley v. Daniel, supra. principles of anatomy and physiology," without first satisfactorily
giving evidence of his unquestioned training and qualifications. Who
is to set the standard for such persons? Shall it be the afflicted in
The plaintiffs certainly knew the purpose of the Act, for when the mind and body, who plead day and night for relief, or shall it be
bill was before the General Assembly, according to their brief, they those who are suddenly stricken in and about their hearts, lungs,
say: "We appeared before the House Judiciary Committee and the stomachs or blood stream, when even the most perfect training,
Senate Medical Committee and filed a printed brief along the lines experience and care may not be enough? or should it be the State?
followed herein." The State may not say to its citizens what they must do or to whom
they must go in time of mental and physical distress, but we think
Plaintiffs rely upon Ex parte Wachovia Bank & Trust Co. (Nettles v. the State has the *92 right to say and direct what the qualifications
People's Bank of Darlington), 160 S.C. 104, 158 S.E. 214, however, shall be of those persons to whom its citizens turn in their hour of
we think this authority affords the plaintiffs no comfort as a study of need.
that decision will reveal the difference between that and the instant
case. Regardless of anything which may appear to a layman's mind as to
what should be the requirements of one who is to diagnose and find
The purpose of this provision is to prevent "log-rolling legislation"; out what is the cause and treatment of his illness, it is not a judicial
to prevent surprise or fraud upon the legislature by means of question. It is one of legislative authority. From the record, we find
provisions in bills of which the title gave no indication, and which that before the Bill became an Act, the General Assembly provided
may be, therefore, overlooked and unintentionally adopted; and to for hearings before two of its standing committees, and we must
apprise the people of the subject of the legislation in order that they assume that the Act is based upon bona fide, scientific grounds.
may have opportunity of being heard, if they so desire. McCollum v. State v. Barnes, 119 S.C. 213, 112 S.E. 62.
Snipes, 213 S.C. 254, 49 S.E. (2d) 12, and many other authorities
therein cited. There is no reasonable doubt that the rights of those who have been
duly licensed to practice medicine or other professions are property
What subject, if we may ask, is embraced in the Act which is not rights of value which are entitled to protection. Ezell v. Ritholz, 188
referred to in the title or not germane to the purposes of the Act? The S.C. 39, 198 S.E. 419; and that the right of a person to practice his
plaintiffs direct our attention to none, and none does an examination profession for which he has prepared himself is property of the very
thereof reveal. It is indeed the duty of this Court to sustain the highest quality. Cavassa v. Off, 206 Cal. 307, 274 P. 523. However,
constitutionality of a sacred act of the legislature unless the contrary it may be observed that no person has a natural or absolute right to
most clearly appears from the language of the statute. This Court practice medicine, surgery, naturopathy or any of the various healing
still adheres to the doctrine that it was not established by the people arts. It is a right granted upon condition. Allopathic State Board of
 P a g e | 33

Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809; courts but for the legislature to determine the need for such
Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, regulation as a protection of the public.
111 So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720, 47 S. Ct. 590, 71
L. Ed. 1324. We do not know what was the legislative mind. For good and
sufficient reasons, it may have concluded that "a little learning is a
A state may not prohibit the practice of medicine or surgery, yet it is dangerous thing" and that those who would undertake to treat or
very generally held that a state, under its police power, may regulate, manipulate the human body must "drink deep or touch not." We of
within reasonable bounds, for the protection of the public health the course must assume that it knew of the decisions of this Court
practice of either by defining the qualifications which one must involving Naturopathy in Dantzler v. Callison, 227 S.C. 317, 88 S.E.
possess before being permitted to practice the same. Hawker v. (2d) 64; Jacoby v. South Carolina State Board, 219 S.C. 66, 64, S.E.
People of State of New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. (2d) 138; and Williams v. Capital Life, supra, However, the right to
1002; Dent v. State of West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 practice medicine is a qualified one and is held in subordination to
L. Ed. 623; and of course, it naturally follows that a legislature in the duty of the State under the police power to protect the public
defining the required qualifications *93 cannot prescribe, as a health. Lawrence v. Board of Registration, 239 Mass. 424, 132 N.E.
condition to the right to practice, knowledge which bears no relation 174. The police power can not be stipulated or bartered away. Gray
to the profession in question. However, this in no way means that the v. State of Connecticut, 159 U.S. 74, 15 S. Ct. 985, 40 L. Ed. 80.
legislature, in enforcing its required qualifications which one, in its
judgment, should possess to practice medicine, must make No person can acquire a vested right to continue, when once
requirements for every school of medicine or of the healing arts licensed, in a business, trade or profession which is subject to
which may exist, by requiring of those belonging to each particular legislative control and regulation under the police power, as
school a knowledge only of those subjects which the theory of regulations prescribed for such may be changed or modified by the
healing, advocated by each school, requires, as was said by the legislature, in the public interest, without subjecting the action to the
Supreme Court of Louisiana in Medical Examiners v. Fowler, supra. charge of interfering *95 with contract or vested rights. State v.
In Allopathic State Board of Louisiana v. Fowler, supra, the court Hovorka, 100 Minn. 249, 110 N.W. 870, 871, 8 L.R.A., N.S., 1272,
said, "We know of no constitutional right given to particular persons, 1273.
who, entertaining peculiar theories of medicine, group themselves
together, and call themselves a special school of medicine under a The granting of a license to practice certain professions is the
selected name, to be recognized as and delt with as such." 50 La. method taken by the State, in the exercise of its police power, to
Ann. 1374, 24 So. 816. regulate and restrict the activity of the licensee. He takes the same,
subject to the right of the State, at any time, for the public good to
Section 56-901, now repealed, sets forth the field of practice for make further restrictions and regulations. It is a matter of common
Naturopaths. Section 56-1354 defines the Practice of Medicine. knowledge that derivatives of opium or similar drugs could be
There is nothing in the existing statutes which will prevent the purchased in former years at even a country store. The State has now
practice of any subject covered in Section 56-901, now repealed, by prohibited this and a druggist may not sell morphine or drugs of that
any person who has been or may be admitted to practice in nature without a prescription from a duly licensed authority. If the
conformity with existing legal provisions. By the adoption of the Act restrictions are reasonable, they would be upheld even though they
complained of, the legislature in no way cut down the field of actually prohibit some people from further engaging in such
practice but it did raise the standards of those who would operate in occupations or professions under a license previously granted. See
such fields. It was not the profession but it was those who practice note 8 L.R.A., N.S., 1273.
the profession that the General Assembly was dealing with. This Act
should be treated and construed as imposing additional qualifications It is universally held that it is competent for the legislature to
upon persons already in the profession. It is an effort on the part of prescribe qualifications for those who are to practice medicine and
the legislature to regulate one phase of the healing arts and should be thus to assure that they shall possess the requisite character and
construed in pari materia with other statutes relating to the subject. learning, Dent v. State of West Virginia, 129 U.S. 114, 9 S. Ct. 231,
It is not for us to reason why or what prompted the legislature to 32 L. Ed. 623, and the State may change the qualifications from time
adopt the statute. It was not without the benefit of the actions of its to time, making them more rigid. Dent v. State of West Virginia,
committees which initially considered the matter. As was said in supra. It lies within the police power to require educational
Barsky v. Board of Regents of University *94 of State of New York, qualification of those already engaged in the practice of any
347 U.S. 442, 74 S. Ct. 650, 655, 98 L. Ed. 829, "It is equally clear profession. Hawker v. People of State of New York, 170 U.S. 189, 18
that a state's legitimate concern for maintaining high standards of S. Ct. 573, 42 L. Ed. 1002.
professional conduct extends beyond initial licensing. Without
continuing supervision, initial examinations afford little protection."
In Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E. 893,
895, and in State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L.R.A.,
In Williamson v. Lee Optical of Okl., 348 U.S. 483, 75 S. Ct. 461, 99 N.S., 179, we find that statutes somewhat similar to the instant
L. Ed. 563, there was an attempt to strike down a statute which statute were under attack along the same lines which the plaintiffs
prohibited opticians from fitting or duplicating eye glasses without a herein argue. It was there held: "The protection of the public from
prescription. The contention was made that the Act violated the due those who undertake to treat or manipulate the human body without
process clause of the Constitution. The Supreme Court of the nation that degree of education, training and skill which the *96 Legislature
denied this contention, holding that in matters of public health, the has prescribed as necessary to the general safety of the people is
power of the legislature is exceedingly broad and it was not for the within the police power of the state. * * * The protection of the
 P a g e | 34

public health is an object of such vital importance to the welfare of PERALTA, J.:Before this Court are appeals via Rule 45 from the
the state that any rational means to that end must be upheld." Decision1 dated June 4, 2004 of the Court of Appeals in CA-G.R.
CR No. 27293, affirming the Decision2 dated February 28,2003 of
Indeed we may assume that the Legislature, in its wisdom, may have the Regional Trial Court (RTC), convicting appellant Dr. Antonio P.
concluded that "the limited practitioner is likely to do a great deal of Cabugao (Dr. Cabugao) and Dr. Clenio Ynzon (Dr. Ynzon) of the
harm, not only because he is not thoroughly educated as a physician, crime of Reckless Imprudence Resulting to Homicide.
but as he is only licensed to use a certain system of treatment, he is
apt to use it in cases to which it is not adapted." The Information3 alleged –

In Williams v. Capital Life & Health Ins. Co., supra, Mr. Chief That on or about June 17, 2000in the City of Dagupan, Philippines,
Justice Baker, now retired, speaking for this Court, said: "While this and within the jurisdiction of this Honorable Court, the abovenamed
is not in any sense controlling, we may advert to the fact that it is a accused, DR. ANTONIO P.CABUGAO and DR. CLENIO YNZON,
matter of common knowledge that the people who purchase sick being then the attending physicians of one RODOLFO PALMA, JR.,
benefit policies of the industrial type constitute a large proportion of a minor 10 years old, confederating and acting jointly with one
the patrons of practitioners of such branches of healing or medicine another, did, then and there, willfully, unlawfully and feloniously
as naturopathy, and that it is generally believed by such people that fail through negligence, carelessness and imprudence to perform
they are dealing with licensed practitioners of medicine." May we immediate operation upon their patient, RODOLFO PALMA, JR. of
ask, after all, why should not persons who hold themselves out to be acute appendicitis, when they, the said physicians, should have been
doctors, regardless of what they may otherwise profess, be required done so considering that examinations conducted upon their patient
to have the training of a medical doctor? Rodolfo Palma, Jr. seriously manifest todo so, causing by such
negligence, carelessness, and imprudence the victim, RODOLFO
In Davis v. Beeler, Tenn., 207 S.W. (2d) 343, 347, in which an PALMA JR., to die due to:
appeal was dismissed by the U.S. Supreme Court, 333 U.S. 859, 68
S. Ct. 745, 92 L. Ed. 1138, a statute strikingly similar to that here "CARDIORESPIRATORY ARREST, METABOLIC
was contested on practically the same grounds as in the instant ENCEPHALOPATHY, SEPTICEMIA (ACUTE APPENDICITIS),
action. There the General Assembly adopted a statute which first CEREBRAL ANEURYSM RUPTURED (?)"
repealed the act authorizing the licensing of naturopaths, and second,
prohibited the practice of naturopathy. It appears that there were As per Certificate of Death issued by accused Dr. Antonio P.
some two hundred licensed naturopaths in Tennessee at the time. Cabugao, to the damage and prejudice of the legal heirs of said
Practically every question raised in the action before us was deceased RODOLFO PALMA, JR. and other consequential damages
presented to the Tennessee Court which held adversely to the relative thereto.
contentions of the plaintiffs there and here, the Court saying:
"Evidently, the Legislature thought there *97 was too much border- CONTRARY to Article 365, 1st par. of the Revised Penal Code.
lining in the practice of naturopathy and determined to stamp out the
evil that was not in the science but in the practicing of it, to the
definite injury of credulous sufferers." Dagupan City, Philippines, January 29, 2001.

Where the primary duty and responsibility for determining a Arising from the same events, the Court resolved to consolidate
question rests with the Legislature, this Court will not substitute its these cases.4 The facts, as culled from the records, are as follows:
judgment for that of the legislative authority.
On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year
It is our opinion that the enactment in question is a valid exercise of old Rodolfo F. Palma, Jr. (JR) complained of abdominal pain to his
the police power of the State and that no unwarranted discrimination mother, Rosario Palma. At 5 o’clock that sameafternoon, Palma's
appears in the Act, and mother and father, Atty. Rodolfo Palma Sr., brought JR to the clinic
of accused Dr. Cabugao. Dr. Cabugao, a general practitioner,
specializing in familymedicine gave medicines for the pain and told
It is so ordered. Palma's parents to call him up if his stomach pains continue. Due to
persistent abdominal pains, at 4:30 in the early morning of June 15,
G.R. No. 163879               July 30, 2014 2000, they returnedto Dr. Cabugao, who advised them to bring JR to
the Nazareth General Hospital in Dagupan City, for confinement. JR
DR. ANTONIO P. CABUGAO, Petitioner, was admitted at the said hospital at 5:30 in the morning.5
vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO Blood samples were taken from JR for laboratory testing. The
M. PALMA and ROSARIO F. PALMA, Respondents.G.R. No. complete blood count conveyed the following result: wbc – 27.80 x
165805 10 9/L; lymphocytes – 0.10 and neutrophils – 0.90. Diagnostic
ultrasound was likewise conducted on the patient's lower abdomen
DR. CLENIO YNZON, Petitioner, vs. by radiologist, Dr. Ricky V. Querubin, with the following findings:
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO
M. PALMA AND ROSARIO F. PALMA, Respondents. Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and
urinary bladder.
 P a g e | 35

There is no free peritoneal fluid. Cabugao requested for a complete blood count (CBC) and a
diagnostic ultrasound on JR. The findings of the CBC and ultrasound
There is localized tenderness in the paraumbilical region, more so in showed that an inflammatory process or infection was going on
the supra and right paraumbilical areas. inside the body of JR. Said inflammatory process was happening in
the periumbilical region where the appendix could be located. The
There is a vague elongated hypoechoic focus in the right initial diagnosis of acute appendicitis appears to be a distinct
periumbilical region roughly about 47 x 18 mm surrounded by possibility. x x x.
undistended gas-filled bowels. This is suggestive of an inflammatory
process wherein appendiceal or periappendiceal pathology cannot be Dr. Ynzon ordered medications to treat the symptoms being
excluded. Clinical correlation is essential."6 manifested by JR. Thereafter, he ordered that JR be observed for 24
hours. However, the accused, as the attending physicians, did not
Dr. Cabugao did a rectal examination noting the following: "rectal: personally monitor JR in order to check on subtle changes that may
good sphincter, negative tenderness, negative mass." The initial occur. Rather, they left the monitoring and actual observation to
impression was Acute Appendicitis,7 and hence, he referred the case resident physicians who are just on residency training and in doing
to his co-accused, Dr. Ynzon, a surgeon.8 In the later part of the so, they substituted their own expertise, skill and competence with
morning of June 15, 2000, Dr. Ynzon went to the hospital and those of physicians who are merely new doctors still on training. Not
readthe CBC and ultrasound results. The administration of massive having personally observed JR during this 24-hour critical period of
antibiotics and pain reliever to JRwere ordered. Thereafter, JR was observation, the accused relinquished their duty and thereby were
placed on observation for twenty-four (24) hours. unable to give the proper and correct evaluation as to the real
condition of JR. In situations where massive infection is going on as
shown by the aggressive medication of antibiotics, the condition of
In the morning of June 16, 2000, JR complained again of abdominal the patient is serious which necessitated personal, not delegated,
pain and his parents noticeda swelling in his scrotum. In the attention of attending physicians, namely JR and the accused in this
afternoon of the same day, JR vomitted out greenish stuff three (3) case.
times and had watery bowels also three (3) times. The nurses on-
duty relayed JR's condition to Dr. Ynzon who merely gaveorders via
telephone.9 Accused continued medications to alleviate JR's xxxx
abdominal spasms and diarrhea. By midnight, JR again vomitted
twice, had loose bowel movements and was unable to sleep. The Throughout the course of the hospitalization and treatment of JR, the
following morning, June 17,2000, JR's condition worsened, he had a accused failed to address the acute appendicitis which was the initial
running fever of 38°C. JR's fever remained uncontrolled and he diagnosis. They did not take steps to find out if indeed acute
became unconscious, he was given Aeknil (1 ampule) and Valium (1 appendicitis was what was causing the massive infection that was
ampule). JR's condition continued to deteriorate that by 2 o'clock in ongoing inside the body of JR even when the inflammatory process
the afternoon, JR's temperature soared to 42°C, had convulsions and was located at the paraumbilical region where the appendix can be
finally died. located. x x x

The Death Certificate10 dated June 19, 2000 prepared by Dr. There may have been other diseases but the records do not show that
Cabugao indicated the following causes of death: the accused took steps to find outwhat disease exactly was plaguing
JR. It was their duty to find out the disease causing the health
Immediate cause: CARDIORESPIRATORY ARREST problem of JR, but they did not perform any process of elimination.
Antecedent cause: METABOLIC ENCEPHALOPATHY Appendicitis, according to expert testimonies, could be eliminated
Underlying cause: SEPTICEMIA (ACUTE only by surgery but no surgery was done by the accused. But the
APPENDICITIS) accused could not have found out the real disease of JR because they
Other significant conditionscontributing to death: were treating merely and exclusively the symptoms by means of the
CEREBRAL ANEURYSM RUPTURED (?) different medications to arrest the manifested symptoms. In fact, by
treating the symptoms alone, the accused were recklessly and
No post-mortem examination was conducted on JR. On February 1, wantonly ignoring the same as signs of the graver health problem of
2001, an Information was filed against accused for reckless JR. This gross negligence on the part of the accused allowed the
imprudence resulting to homicide. At their arraignment, both infection to spread inside the body of JR unabated. The infection
accused, duly assisted by counsel, pleaded not guilty to the charge. obviously spread so fastand was so massive that within a period of
only two and a half (2 ½) days from the day of admission to the
hospital on June 15, 2000, JR who was otherwise healthy died [of]
On February 28, 2003, in convicting both the accused, the trial court Septicemia (Acute Appendicitis) on June 17, 2000.11
found the following circumstances as sufficient basis to conclude
that accused were indeed negligent in the performance of their
duties: On June 4, 2004, in affirming the accused' conviction, the Court of
Appeals gave similar observations, to wit:
It is unquestionable that JR was under the medical care of the
accused from the time of his admission for confinement at the The foregoing expert testimony clearly revealed such want of
Nazareth General Hospital until his death. Upon his admission, the reasonable skill and care on the part of JR's attending physicians,
initial working diagnosis was to consider acute appendicitis. To appellants Dr. Cabugao and Dr. Ynzon in neglecting to monitor
assist the accused in the consideration of acute appendicitis, Dr. effectively and sufficiently the developments/changes during the
observation period and act upon the situation after said 24-hour
 P a g e | 36

period when his abdominal pain subsisted, his condition even II

worsened with the appearance of more serious symptoms of nausea,
vomiting and diarrhea. Considering the brief visit only made on WHETHER THE SUBJECT INFORMATION APPEARS TO
regular rounds, the records clearly show such gross negligence in HAVE ACCUSED BOTH ACCUSED DOCTORS OF
failing to take appropriate steps to determine the real cause of JR's CONSPIRACY AND THE APPEALED DECISION SEEMS TO
abdominal pain so that the crucial decision to perform surgery HAVE TREATED BOTH ACCUSED DOCTORS TO BE IN
(appendectomy) had even been ruled out precisely because of the CONSPIRACY;
inexcusable neglect to undertake suchefficient diagnosis by process
of elimination, as correctly pointed out by the trial court. As has III
been succinctly emphasized by Dr. Mateo, acute appendicitis was
the working diagnosis, and with the emergence of symptoms after
the 24-hour observation (high fever, vomiting, diarrhea) still, WHETHER PETITIONER DR. CABUGAO IS A GENERAL
appellants ruled out surgery, not even considering exploratory PRACTITIONER (NOT A SURGEON) AND HAVE EXCLUDED
laparoscopy. Dr. Mateo also expressed the opinion that the decision SURGERY FROM THE LIMITS OFHIS PRACTICE, AND IT
to operate could have been made after the result of the ultrasound WAS NOT AND NEVER HIS DUTY TO OPERATE THE
test, considering that acute appendicitis was the initial diagnosis by PATIENT RODOLFO PALMA JR., THAT WAS WHY HE
Dr. Cabugao after he had conducted a rectal examination. REFERRED SUBJECT PATIENT TO A SURGEON, DR. CLENIO
YNZON;
Medical records buttress the trial court's finding that in treating JR,
appellants have demonstrated indifference and neglect of the IV
patient's condition as a serious case. Indeed, appendicitis remains a
clinical emergencyand a surgical disease, as correctly underscored WHETHER THE DEFENSE NEVER STATED THAT THERE IS
by Dr. Mateo, a practicing surgeon who has already performed over GUARANTEE THAT DOING SURGERY WOULD HAVE
a thousand appendectomy. In fact, appendectomy is the only rational SAVED THE PATIENT;
therapy for acute appendicitis; it avoids clinical deterioration and
may avoid chronic or recurrent appendicitis. Although difficult, V
prompt recognition and immediate treatment of the disease prevent
complications. Under the factual circumstances, the inaction, neglect WHETHER THE WITNESSES FOR THE PROSECUTION
and indifference of appellants who, after the day of admission and INCLUDING PROSECUTION'S EXPERT WITNESSES EVER
after being apprised of the ongoing infection from the CBC and DECLARED/TESTIFIED THAT PETITIONER DR. CABUGAO
initial diagnosis as acute appendicitis from rectal examination and HAD THE DUTY TO PERFORM IMMEDIATE OPERATION ON
ultrasound testand only briefly visited JR once during regular rounds RODOLFO PALMA, JR., AND THEY FAILED TO
and gave medication orders by telephone – constitutes gross STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH
negligenceleading to the continued deterioration of the patient, his OF JR WAS ACUTE APPENDICITIS;
infection having spread in sofast a pace that he died within just two
and a half (2 ½) days’ stay inthe hospital. Authorities state that if the
VI
clinical picture is unclear a short period of 4 to 6 hours of watchful
waiting and a CT scan may improve diagnostic accuracy and help to
hasten diagnosis.Even assuming that JR's case had an atypical WHETHER THE EXPERT WITNESSES PRESENTED BY THE
presentation in view of the location of his appendix, laboratory tests PROSECUTION EVER QUESTIONED THE MANAGEMENT
could have helped to confirm diagnosis, as Dr. Mateo opined thatthe AND CARE APPLIED BY PETITIONER DR. CABUGAO;
possibility of JR having a retrocecal appendicitis should have been a
strong consideration. Lamentably, however, as found by the trial VII
court, appellants had not taken steps towards correct diagnosis and
demonstrated laxity even when JR was already running a high fever WHETHER THE EXPERT WITNESSES PRESENTED BY THE
in the morning of June 17, 2000 and continued vomiting with DEFENSE ARE UNANIMOUS IN APPROVING THE METHOD
diarrhea, his abdominal pain becoming more intense. This is the OF TREATMENT APPLIED BY BOTH ACCUSED DOCTORS
reason why private complainants were not even apprised of the ON SUBJECT PATIENT, AND THEY DECLARED/AFFIRMED
progress of appellants' diagnosis – appellants have nothing to report THAT THEY WOULD FIRST PLACE SUBJECT THE PATIENT
because they did nothing towards the end and merely gave UNDER OBSERVATION, AND WOULD NOT PERFORM
medications to address the symptoms.12 IMMEDIATE OPERATION;

Thus, these appeals brought beforethis Court raising the following VIII
arguments:
WHETHER THE CONVICTION OF PETITIONER DR. YNZON
I WAS ESTABLISHED WITH THE REQUIRED QUANTUM OF
PROOF BEYOND REASONABLE DOUBT THAT THE
WHETHER THE CAUSE OF ACCUSATION AS CONTAINED PATIENT WAS SPECIFICALLY SUFFERING FROM AND DIED
IN THE INFORMATION IS "FAILURE TO PERFORM OF ACUTE APPENDICITIS; and
IMMEDIATE OPERATION UPON THE PATIENT ROFOLFO
PALMA JR. OF ACUTE APPENDICITIS; IX
 P a g e | 37

WHETHER THE FAILURE TO CONDUCT THE SPECIFIC Q You stated a while ago doctor thatyou are going to [do] surgery to
SURGICAL OPERATION KNOWN AS APPENDECTOMY the patient, why doctor, if you are notgoing to do surgery, what will
CONSTITUTED CRIMINAL NEGLIGENCE. happen?

In a nutshell, the petition brought before this Court raises the issue of A If this would be appendicitis, the usual progress would be that it
whether or not petitioners' conviction of the crime of reckless would be ruptured and generalized peritonitis and eventually
imprudence resulting in homicide, arising from analleged medical septicemia, sir.
malpractice, is supported by the evidence on record.
Q What do you mean by that doctor?
Worth noting is that the assigned errors are actually factual in nature,
which as a general rule, findings of factof the trial court and the A That means that infection would spread throughout the body, sir.
Court of Appeals are binding and conclusiveupon this Court, and we
will not normally disturb such factual findings unless the findings of Q If unchecked doctor, what will happen?
the court are palpably unsupported by the evidence on record or
unless the judgment itself is based on misapprehension of facts. A It will result to death.17
Inthe instant case, we find the need to make certain exception.
xxxx
AS TO DR. YNZON'S LIABILITY:
Q And what would have you doneif you entertain other considerations from
Reckless imprudence consists of voluntarily doing or failing to do, the time the patient was admitted?
without malice, an act from which material damage results by reason
of an inexcusable lack of precautionon the part of the person A From the time the patient was admitted until the report of the sonologist, I
performing or failing to perform such act.13 The elements of would have made a decision by then.
reckless imprudence are: (1) that the offender does or fails to do an
act; (2) that the doing or the failure to do that act is voluntary; (3) Q And when to decide the surgery would it be a particular exact time, would
that it bewithout malice; (4) that material damage results from the it be the same for all surgeons?
reckless imprudence; and (5) that there is inexcusable lack of
precaution on the part of the offender, taking into consideration his A If you are asking acute appendicitis, it would be about 24 hours because
employment or occupation, degree of intelligence, physical acute appendicitis is a 24-hour disease, sir.
condition, and other circumstances regarding persons, time and
place.14 Q. And would it be correct to say that it depends on the changes on the
condition of the patient?
With respect to Dr. Ynzon, all the requisites of the offense have been
clearly established by the evidence on record. The court a quoand A. Yes, sir.
the appellate court were one in concluding that Dr. Ynzon failed to
observe the required standard of care expected from doctors. Q. So, are you saying more than 24 hours when there are changes?

In the instant case, it was sufficiently established that to prevent A. If there are changes in the patient pointing towards appendicitis then you
certain death, it was necessary to perform surgery on JR have to decide right there and then, sir.
immediately. Even the prosecution’s own expert witness, Dr.
Antonio Mateo,15 testified during cross-examination that he would Q. So if there are changes in the patient pointing to appendicitis?
perform surgery on JR:
A. It depends now on what you are trying to wait for in the observation
ATTY. CASTRO: period, sir.

Q. So precisely if the change is a condition which bring you in doubt that

Q. Given these data soft non-tender abdomen, ambulatory, watery
there is something else other than appendicitis, would you extend over a
diarrhea, Exhibit C which is the ultrasound result, with that period of 24 hours?
laboratory would you operate the patient?
A. It depends on the emergent development, sir.
A Yes, I would do surgery.
Q. That is the point, if you are the attending physician and there is a change
Q And you should have done surgery with this particular case?" not pointing to appendicitis, would you extend over a period of 24 hours?

A Yes, sir.16 A. In 24 hours you have to decide, sir.

COURT: xxxx

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

 P a g e | 38

A. Yes, sir.18 shall now refer to as JR, the primary consideration then is acute
appendicitis, is that correct to say Doctor?
Dr. Mateo further testified on cross-examination:
A. I think so, that is the impression.
ATTY. CASTRO:
Q. x x x Now if it is to be considered as the primary consideration in
Q: So you will know yourself, as far as the record is concerned, the initial working diagnosis, isn't it a fact that it has tobe ruled out
because if you will agree with me, you did not even touch the in order to consider it as not the disease of JR?
patient?
A. Yes. Sir.
A. Yes, I based my opinion on what is put on record, sir. The records
show that after the observation period, the abdominal pain is still Q. Isn't it a fact thatto rule out acute appendicitis as not the disease
there plus there are already other signs and symptoms which are not of JR, surgery or operation must be done, isn't it Doctor?
seen or noted.
A. You have to correlate all the findings.
Q. But insofar as you yourself not having touched the abdomen of
the patient, would you give a comment on that?
Q. Is it yes or no, Doctor?
A. Yes, based on the record, after 24 hours of observation, the pain
A. Yes.
apparently was still there and there was more vomiting and there was
diarrhea. In my personal opinion, I think the condition of the patient
was deteriorating. Q. So, you are saying then that in order to rule out acute appendicitis
there must be an operation, that is right Doctor?
Q. Even though you have not touched the patient?
A. No, sir. If your diagnosis is toreally determine if it is an acute
appendicitis, you have to operate.21
A. I based on what was on the record, sir.19

xxxx
From the foregoing, it is clear that if JR’s condition remained
unchecked it would ultimately result in his death, as what actually
happened in the present case. Another expert witness for the defense, Q. Now Doctor, considering the infection, considering that there was
Dr. Vivencio Villaflor, Jr. testified on direct examination that he a [symptom] that causes pain, considering that JR likewise was
would perform a personal and thorough physical examination of the feverish and that he was vomiting, does that not show a disease of
patient as frequent as every 4 to 6 hours, to wit: acute appendicitis Doctor?

ATTY. CASTRO: A. Its possible.

Q. As an expert doctor, if you were faced with a history of Q. So that if that is possible, are we getting the impression then
abdominal pain with nausea, vomiting, fever, anurecia (sic), elevated Doctor what you have earlier mentioned that the only way to rule out
white blood cell count, physical examination of a positive psoas the suspect which is acute appendicitis is by surgery, you have said
sign, observation of the sonologist of abdominal tenderness and the that earlier Doctor, I just want any confirmation of it?
ultrasound findings of the probability of appendiceal (sic) pathology,
what will you do if you have faced these problems, Doctor? A. Yes, sir.22

A. I will examine the patient thoroughly and it will depend on my Verily, whether a physician or surgeon has exercised the requisite
physical examination and that isprobably every 4 to 6 hours, sir.20 degree of skill and care in the treatment of his patient is, in the
generality of cases, a matter of expert opinion. The deference of
On cross-examination, Dr. Villaflor affirmed: courts to the expert opinions of qualified physicians stems from its
realization that the latter possess unusual technical skills which
laymen in most instances are incapable of intelligently evaluating.23
Cross Exam. By Atty. Marteja:
From the testimonies of the expert witnesses presented, it was
irrefutably proven that Dr. Ynzon failed to practice that degree of
Q. x x x However, there are corrections and admissions made at that skill and care required in the treatment of his patient.
time, your Honor, do I understand thatT/C does not mean ruled out
but rather to consider the matter?
As correctly observed by the appellate court, Dr. Ynzon revealed
want of reasonable skill and care in attending to the needs of JR by
A. Yes, now that I have seen the records of the patient, it says here, neglecting to monitor effectively the developmentsand changes on
impression and T/C means to consider the appendicitis. JR's condition during the observation period, and to act upon the
situation after the 24-hour period when his abdominal pain persisted
Q. Isn't it that it is worth then to say that the initial working and his condition worsened. Lamentable, Dr. Ynzon appeared to
diagnosis on Rodolfo Palma, Jr., otherwise known as JR, to whom I have visited JRbriefly only during regular rounds in the mornings.
 P a g e | 39

He was not there during the crucial times on June 16, 2000 when Both the trial court and the appellate court bewail the failure to
JR's condition started to deteriorate until JR's death. As the attending perform appendectomy on JR, or the failure to determine the source
surgeon, he should be primarily responsible in monitoring the of infection which caused the deterioration of JR's condition.
condition of JR, as he is in the best position considering his skills However, a review of the records fail to show that Dr. Cabugao is in
and experience to know if the patient's condition had deteriorated. any position to perform the required appendectomy.
While the resident-doctors-onduty could likewise monitor the
patient’scondition, he is the one directly responsible for the patient Immediately apparent from a review of the records of this case is the
as the attending surgeon. Indeed, it is reckless and gross negligence fact that Dr. Cabugao is not a surgeon,but a general practitioner
of duty to relegate his personal responsibility to observe the specializing in family medicine;27 thus, even if he wanted to, he
condition of the patient. Again, acute appendicitis was the working cannot do an operation, much less an appendectomy on JR. It is
diagnosis, and with the emergence of graver symptoms after the 24- precisely for this reason why he referred JR to Dr. Ynzon after he
hour observation, Dr. Ynzon ruled out surgery for no apparent suspected appendicitis. Dr. Mateo, the prosecution’s expert witness,
reason. We, likewise, note that the records are devoid of showing of emphasized the role of the surgeon during direct examination, to wit:
any reasonable cause which would lead Dr. Ynzon tooverrule
appendectomy despite the initial diagnosis of appendicitis. ATTY. MARTEJA:
Neitherwas there any showing that he was entertaining another
diagnosis nor he took appropriate steps towards another diagnosis.
Q. You had mentioned that under this circumstances and condition,
you have mentioned that surgery is the solution, would you have
Among the elements constitutive of reckless imprudence, what allowed then a 24 hour observation?
perhaps is most central to a finding of guilt is the conclusive
determination that the accused has exhibited, by his voluntary act
without malice, an inexcusable lack of precaution. It is that which A. If there is a lingering doubt, inshort period of observation of 18-
supplies the criminal intent so indispensable as tobring an act of 24 hours can be allowed provided that there would be close
mere negligence and imprudence under the operation of the penal monitoring of the patient, sir.
law. This is because a conscious indifference to the consequences of
the conduct is all that is required from the standpoint of the frame of Q. Would you please tell us who would be doing the monitoring
mind of the accused.24 Quasioffenses penalize the mental attitudeor doctor?
condition behind the act, the dangerous recklessness, the lack of care
or foresight, the "imprudencia punible," unlike willful offenses A. The best person should be the first examiner, the best surgeon,
which punish the intentional criminal act.25 This is precisely where sir.
this Court found Dr. Ynzon to be guilty of - his seemingly
indifference to the deteriorating condition of JR that he as a Q. So that would you say that it is incumbent on the surgeon
consequence, failed to exercise lack of precaution which eventually attending to the case to have been the one to observe within the
led to JR's death. period of observation?

To be sure, whether or not a physician has committed an A. Yes, because he will be in the best position to observe the sudden
"inexcusable lack of precaution" in the treatment of his patient is to changes in the condition of the patient, sir.
be determined according to the standard of care observed by other
members of the profession in good standing under similar
Q. And how often would in your experience doctor, how often
circumstances bearing in mind the advanced state of the profession
would the surgeon re-assist (sic) the condition of the patient during
at the time of treatment or the present state of medical science. In
the period of observation?
accepting a case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons practicing in
the same field, he will employ such training, care and skill in the A. Most foreign authors would recommend every four (4) hours,
treatment of his patients. He, therefore, has a duty to use at least the some centers will recommend hourly or every two hours but here in
same level of care that any other reasonably competent doctor would the Philippines, would recommend for 4 to 6 hours, sir.28
use to treat a condition under the same circumstances.26 Sadly, Dr.
Ynzon did not display that degree of care and precaution demanded Dr. Cabugao’s supervision does not cease upon his endorsement of
by the circumstances. his patient to the surgeon. Here, Dr. Cabugao has shown to have
exerted all efforts to monitor his patient and under these
AS TO DR. CABUGAO'S LIABILITY: circumstances he did not have any cause to doubt Dr. Ynzon’s
competence and diligence. Expert testimonies have been offered to
prove the circumstances surrounding the case of JR and the need to
Every criminal conviction requires of the prosecution to prove two
perform an operation. Defense witness, Dr. Villaflor, on cross
things — the fact of the crime, i.e., the presence of all the elements
examination testified, to wit:
of the crime for which the accused stands charged, and the fact that
the accused is the perpetrator of the crime. Based on the above
disquisitions, however, the prosecution failed to prove these two Q. Isn't it a fact that torule out acute appendicitis as notthe disease of
things. The Court is not convinced with moral certainty that Dr. JR, surgery or operation mustbe done, isn't it Doctor?
Cabugao isguilty of reckless imprudence as the elements thereof
were not proven by the prosecution beyond a reasonable doubt. A. You have to [correlate] all the findings.
 P a g e | 40

Q. Is it yes or no, Doctor? AS TO CIVIL LIABILITY

A. Yes. While this case is pending appeal, counsel for petitioner Dr. Ynzon
informed the Court that the latter died on December 23, 2011 due to
Q. So, you are saying then that in order to rule out acute appendicitis "multiorgan failure" as evidenced by a copy of death certificate.33
there must be an operation, that is right Doctor? Thus, the effect of death, pending appeal of his conviction of
petitioner Dr. Ynzon with regard to his criminal and pecuniary
A. No, sir. If your diagnosis is to really determine if it is an acute liabilities should be in accordance to People v. Bayotas,34 wherein
appendicitis, you have to operate.29 the Court laid down the rules in case the accused dies prior to final
judgment:
xxxx
1. Death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil
Q. Now Doctor, considering the infection, considering that there was liability based solely thereon. As opined by Justice
a [symptom] that causes pain, considering that JR likewise was Regalado, in this regard, "the death of the accused prior to
feverish and that he was vomitting, does that not show a disease of final judgment terminates his criminal liability and only the
acute appendicitis Doctor? civil liability directly arising from and based solely on the
offense committed, i.e.,civil liability ex delictoin senso
A. It’s possible. strictiore."

Q. So that if that is possible, are we getting the impression then 2. Corollarily, the claim for civil liability survives
Doctor what you have earlier mentioned that the only way to rule out notwithstanding the death of accused, if the same may also
the suspect which is acute appendicitis is by surgery, you have said be predicated on a source of obligation other than delict.
that earlier Doctor, I just want any confirmation of it? Article 1157 of the Civil Code enumerates these other
sources of obligation fromwhich the civil liability may arise
A. Yes, sir.30 as a result of the same act or omission:

Neither do we find evidence that Dr. Cabugao has been negligent or a) Law
lacked the necessary precaution in his performance of his duty as a
family doctor. On the contrary, a perusal ofthe medical records b) Contracts
would show that during the 24-hour monitoring on JR, it was Dr.
Cabugao who frequently made orders on the administration of c) Quasi-contracts
antibiotics and pain relievers. There was also repetitive instructions
from Dr. Cabugao to refer JR to Dr. Ynzon as it appeared that he is
suspecting appendicitis. The referral of JR to Dr. Ynzon, a surgeon, d) x x x x x x x x x
is actually an exercise of precaution as he knew that appendicitis is
not within his scope of expertise. This clearly showed that he e) Quasi-delicts
employed the best of his knowledge and skill in attending to JR's
condition, even after the referral of JR to Dr. Ynzon. To be sure, the 3. Where the civil liability survives, as explained in
calculated assessment of Dr. Cabugao to refer JRto a surgeon who Number 2 above, an action for recovery therefor may be
has sufficient training and experience to handle JR’s case belies the pursued but only by way of filing a separate civil action and
finding that he displayed inexcusable lack of precaution in handling subject to Section 1, Rule 111 of the 1985 Rules on
his patient.31 Criminal Procedure as amended. This separate civil action
may be enforced either againstthe executor/administrator or
We likewise note that Dr. Cabugao was out of town when JR's the estate of the accused, depending on the source of
condition began to deteriorate. Even so, before he left, he made obligation upon which the same is based as explained
endorsement and notified the resident-doctor and nurses-on-duty that above.
he will be on leave.
4. Finally, the private offended party need not fear a
Moreover, while both appeared to be the attending physicians of JR forfeiture of his right to file this separate civil action by
during his hospital confinement, it cannot be said that the finding of prescription, in cases where during the prosecution of the
guilt on Dr. Ynzon necessitates the same finding on the co-accused criminal action and prior to its extinction, the private-
Dr. Cabugao. Conspiracy is inconsistent with the idea of a felony offended party instituted together therewith the civil action.
committed by means of culpa.32 Thus, the accused-doctors to be In such case, the statute of limitationson the civil liability is
found guilty of reckless imprudence resulting in homicide, it must be deemed interrupted during the pendency of the criminal
shown that both accused-doctors demonstratedan act executed case, conformably with provisions of Article 1155 of the
without malice or criminal intent – but with lack of foresight, Civil Code, that should thereby avoid any apprehension on
carelessness, or negligence. Noteworthy, the evidence on record a possible privation of right by prescription.35
clearly points to the reckless imprudence of Dr. Ynzon; however, the
same cannot be said in Dr. Cabugao's case. In view of the foregoing, it is clear that the death of the accused Dr.
Ynzon pending appeal of his conviction extinguishes his criminal
 P a g e | 41

liability. However, the recovery of civil liability subsists as the same for the last sickness of the decedent, and judgment for money against
is not based on delictbut by contract and the reckless imprudence he the decent, must be filed within the time limited in the notice;
was guilty of under Article 365 of the Revised Penal Code.1âwphi1 otherwise they are barred forever, except that they may be set forth
For this reason, a separate civil action may be enforced either against as counterclaims in any action that the executor or administrator may
the executor/administrator or the estate of the accused, depending on bring against the claimants. Where an executor or administrator
the source of obligation upon which the same is based,36 and in commencesan action, or prosecutes an action already commenced by
accordance with Section 4, Rule 111 of the Rules on Criminal the deceased in his lifetime, the debtor may set forth by answer the
Procedure, we quote: claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims
Sec. 4. Effect of death on civil actions. – The death of the accused may be set off against each other in such action; and if final
after arraignment and during the pendency of the criminal action judgment is rendered in favor of the defendant, the amount so
shall extinguish the civil liability arising from the delict. However, determined shall be considered the true balance against the estate, as
the independent civil action instituted under section 3 of this Rule or though the claim had been presented directly beforethe court in the
which thereafter is instituted to enforce liability arising from other administration proceedings. Claims not yet due, or contingent, may
sources of obligation may be continued against the estate or legal be approved at their present value.
representative of the accused after proper substitution or against said
estate, as the case may be. The heirs of the accused may As a final note, we reiterate thatthe policy against double recovery
besubstituted for the deceased without requiring the appointment of requires that only one action be maintained for the same act or
an executor or administrator and the court may appoint a guardian ad omission whether the action is brought against the executor or
litem for the minor heirs. administrator, or the estate.39 The heirs of JR must choose which of
the available causes of action for damages they will bring.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty WHEREFORE, premises considered, petitioner DR. ANTONIO P.
(30) days from notice. CABUGAO is hereby ACQUITTEDof the crime of reckless
imprudence resulting to homicide.
A final judgment entered in favor of the offended party shall be
enforced in the manner especially provided in these rules for Due to the death of accused Dr. Clenio Ynzon prior to the
prosecuting claims against the estate of the deceased. disposition of this case, his criminal liability is extinguished;
however, his civil liability subsists. A separate civil action may be
If the accused dies before arraignment, the case shall be dismissed filed either against the executor/administrator, or the estateof Dr.
without prejudice to any civil action the offended party may file Ynzon, depending on the source of obligation upon which the same
against the estate of the deceased. (Emphases ours) are based.

In sum, upon the extinction of the criminal liability and the offended SO ORDERED.
party desires to recover damages from the same act or omission
complained of, the party may file a separate civil action based on the G.R. No. 192123
other sources of obligation in accordance with Section 4, Rule March 10, 2014
111.37 If the same act or omission complained of arises from quasi-
delict,as in this case, a separate civil action must be filed against the
DR. FERNANDO P.d, Petitioner, vs.
executor or administrator of the estate of the accused, pursuant to
Section 1, Rule 87 of the Rules of Court:38 PEOPLE OF THE PHILIPPINES, Respondent.

Section 1. Actions which may and which may not be brought against BERSAMIN, J.:This appeal is taken by a physician-anesthesiologist
executor or administrator. — No action upon a claim for the who has been pronounced guilty of reckless imprudence resulting in
recovery of money or debtor interest thereon shall be commenced serious physical injuries by the Regional Trial Court (RTC) and the
against the executor or administrator; but to recover real or personal Court of Appeals (CA). He had been part of the team of
property, or an interest therein, from the estate, or to enforce a lien anesthesiologists during the surgical pull-through operation
thereon, and actions to recover damages for an injury to person or conducted on a three-year old patient born with an imperforate
property, real or personal, may be commenced against him. anus.1
(Emphases ours)
The antecedents are as follows:
Conversely, if the offended party desires to recover damages from
the same act or omission complained of arising from contract, the Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an
filing of a separate civil action must be filed against the estate, imperforate anus. Two days after his birth, Gerald underwent
pursuant to Section 5, Rule 86 of the Rules of Court, to wit: colostomy, a surgical procedure to bring one end of the large
intestine out through the abdominal wall,3 enabling him to excrete
Section 5. Claims which must be filed under the notice. If not filed, through a colostomy bag attached to the side of his body.4
barred; exceptions. — All claims for money against the decent,
arising from contract, express or implied, whether the same be due, On May 17, 1995, Gerald, then three years old, was admitted at the
not due, or contingent, all claims for funeral expenses and expense Ospital ng Maynila for a pull-through operation.5 Dr. Leandro
 P a g e | 42

Resurreccion headed the surgical team, and was assisted by Dr. Accordingly, the bond posted by the accused for his provisional
Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The liberty is hereby CANCELLED.
anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and
petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the SO ORDERED.17
operation, Gerald experienced bradycardia,7 and went into a coma.8
His coma lasted for two weeks,9 but he regained consciousness only Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider
after a month.10 He could no longer see, hear or move.11 their solidary liability,18 the RTC excluded them from solidary
liability as to the damages, modifying its decision as follows:
Agitated by her son’s helpless and unexpected condition, Ma. Luz
Gercayo (Luz) lodged a complaint for reckless imprudence resulting WHEREFORE, premises considered, the Court finds accused Dr.
in serious physical injuries with the City Prosecutor’s Office of Fernando Solidum, guilty beyond reasonable doubt as principal of
Manila against the attending physicians.12 the crime charged and is hereby sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto
Upon a finding of probable cause, the City Prosecutor’s Office filed mayor as minimum to one (1) year, one (1) month and ten (10) days
an information solely against Dr. Solidum,13 alleging: – of prision correccional as maximum and to indemnify jointly and
severally with Ospital ng Maynila, private complainant Luz Gercayo
That on or about May 17, 1995, in the City of Manila, Philippines, the amount of ₱500,000.00 as moral damages and ₱100,000 as
the said accused, being then an anesthesiologist at the Ospital ng exemplary damages and to pay the costs.
Maynila, Malate, this City, and as such was tasked to administer the
anesthesia on three-year old baby boy GERALD ALBERT Accordingly, the bond posted by the accused for his provisional
GERCAYO, represented by his mother, MA. LUZ GERCAYO, the liberty is hereby cancelled.19
former having been born with an imperforate anus [no anal opening]
and was to undergo an operation for anal opening [pull through Decision of the CA
operation], did then and there willfully, unlawfully and feloniously
fail and neglect to use the care and diligence as the best of his
judgment would dictate under said circumstance, by failing to On January 20, 2010, the CA affirmed the conviction of Dr.
monitor and regulate properly the levels of anesthesia administered Solidum,20 pertinently stating and ruling:
to said GERALD ALBERT GERCAYO and using 100% halothane
and other anesthetic medications, causing as a consequence of his The case appears to be a textbook example of res ipsa loquitur.
said carelessness and negligence, said GERALD ALBERT
GERCAYO suffered a cardiac arrest and consequently a defect xxxx
called hypoxic encephalopathy meaning insufficient oxygen supply
in the brain, thereby rendering said GERALD ALBERT GERCAYO x x x [P]rior to the operation, the child was evaluated and found fit
incapable of moving his body, seeing, speaking or hearing, to his to undergo a major operation. As noted by the OSG, the accused
damage and prejudice. himself testified that pre-operation tests were conducted to ensure
that the child could withstand the surgery. Except for his imperforate
Contrary to law.14 anus, the child was healthy. The tests and other procedures failed to
reveal that he was suffering from any known ailment or disability
The case was initially filed in the Metropolitan Trial Court of that could turn into a significant risk. There was not a hint that the
Manila, but was transferred to the RTC pursuant to Section 5 of nature of the operation itself was a causative factor in the events that
Republic Act No. 8369 (The Family Courts Act of 1997),15 where it finally led to hypoxia.
was docketed as Criminal Case No. 01-190889.
In short, the lower court has been left with no reasonable hypothesis
Judgment of the RTC except to attribute the accident to a failure in the proper
administration of anesthesia, the gravamen of the charge in this case.
On July 19, 2004, the RTC rendered its judgment finding Dr. The High Court elucidates in Ramos vs. Court of Appeals 321
Solidum guilty beyond reasonable doubt of reckless imprudence SCRA 584 –
resulting to serious physical injuries,16 decreeing:
In cases where the res ipsa loquitur is applicable, the court is
WHEREFORE, premises considered, the Court finds accused DR. permitted to find a physician negligent upon proper proof of injury
FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as to the patient, without the aid of expert testimony, where the court
principal of the crime charged and is hereby sentenced to suffer the from its fund of common knowledge can determine the proper
indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of standard of care.
arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH
and TEN (10) DAYS of prision correccional as maximum and to Where common knowledge and experience teach that a resulting
indemnify, jointly and severally with the Ospital ng Maynila, Dr. injury would not have occurred to the patient if due care had been
Anita So and Dr. Marichu Abella, private complainant Luz Gercayo, exercised, an inference of negligence may be drawn giving rise to an
the amount of ₱500,000.00 as moral damages and ₱100,000.00 as application of the doctrine of res ipsa loquitur without medical
exemplary damages and to pay the costs. evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is
 P a g e | 43

appropriate, all that the patient must do is prove a nexus between the (sic) WHEN THE DEFENSE WAS ABLE TO PROVE
particular act or omission complained of and the injury sustained THAT THERE IS NO NEGLIGENCE ON THE PART OF
while under the custody and management of the defendant without THE PETITIONER, AND NO OVERDOSING IN THE
need to produce expert medical testimony to establish the standard APPLICATION OF THE ANESTHETIC AGENT
of care. Resort to res ipsa loquitur is allowed because there is no BECAUSE THERE WAS NO 100% HALOTHANE
other way, under usual and ordinary conditions, by which the patient ADMINISTERED TO THE CHILD, BUT ONLY ONE
can obtain redress for injury suffered by him. (1%) PERCENT AND THE APPLICATION THEREOF,
WAS REGULATED BY AN ANESTHESIA MACHINE.
The lower court has found that such a nexus exists between the act THUS, THE APPLICATION OF THE PRINCIPLE OF
complained of and the injury sustained, and in line with the RES IPSA LOQUITOR (sic) CONTRADICTED THE
hornbook rules on evidence, we will afford the factual findings of a ESTABLISHED FACTS AND THE LAW APPLICABLE
trial court the respect they deserve in the absence of a showing of IN THE CASE.
arbitrariness or disregard of material facts that might affect the
disposition of the case. People v. Paraiso 349 SCRA 335. III.

The res ipsa loquitur test has been known to be applied in criminal THE AWARD OF MORAL DAMAGES AND
cases. Although it creates a presumption of negligence, it need not EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE
offend due process, as long as the accused is afforded the BEING NO NEGLIGENCE ON THE PART OF THE
opportunity to go forward with his own evidence and prove that he PETITIONER. ASSUMING THAT THE CHILD IS
has no criminal intent. It is in this light not inconsistent with the ENTITLED TO FINANCIAL CONSIDERATION, IT
constitutional presumption of innocence of an accused. SHOULD BE ONLY AS A FINANCIAL ASSISTANCE,
BECAUSE THERE WAS NO NEGLIGENCE, AND NO
IN VIEW OF THE FOREGOING, the modified decision of the OVERDOSING OF ANESTHETIC AGENT AND AS
lower court is affirmed. SUCH, THE AWARD IS SO EXCESSIVE, AND NO
FACTUAL AND LEGAL BASIS.23
SO ORDERED.21
To simplify, the following are the issues for resolution, namely: (a)
Dr. Solidum filed a motion for reconsideration, but the CA denied whether or not the doctrine of res ipsa loquitur was applicable
his motion on May 7, 2010.22 herein; and (b) whether or not Dr. Solidum was liable for criminal
negligence.
Hence, this appeal.
Ruling
Issues
The appeal is meritorious.
Dr. Solidum avers that:
Applicability of the Doctrine of Res Ipsa Loquitur
I.
Res ipsa loquitur is literally translated as "the thing or the transaction
speaks for itself." The doctrine res ipsa loquitur means that "where
THE HONORABLE COURT OF APPEALS ERRED IN the thing which causes injury is shown to be under the management
AFFIRMING THE DECISION OF THE LOWER COURT of the defendant, and the accident is such as in the ordinary course of
IN UPHOLDING THE PETITIONER’S CONVICTION things does not happen if those who have the management use
FOR THE CRIME CHARGED BASED ON THE TRIAL proper care, it affords reasonable evidence, in the absence of an
COURT’S OPINION, AND NOT ON THE BASIS OF explanation by the defendant, that the accident arose from want of
THE FACTS ESTABLISHED DURING THE TRIAL. care."24 It is simply "a recognition of the postulate that, as a matter
ALSO, THERE IS A CLEAR MISAPPREHENSION OF of common knowledge and experience, the very nature of certain
FACTS WHICH IF CORRECTED, WILL RESULT TO types of occurrences may justify an inference of negligence on the
THE ACQUITTAL OF THE PETITIONER. FURTHER, part of the person who controls the instrumentality causing the injury
THE HONORABLE COURT ERRED IN AFFIRMING in the absence of some explanation by the defendant who is charged
THE SAID DECISION OF THE LOWER COURT, AS with negligence. It is grounded in the superior logic of ordinary
THIS BREACHES THE CRIMINAL LAW PRINCIPLE human experience and on the basis of such experience or common
THAT THE PROSECUTION MUST PROVE THE knowledge, negligence may be deduced from the mere occurrence of
ALLEGATIONS OF THE INFORMATION BEYOND the accident itself.
REASONABLE DOUBT, AND NOT ON THE BASIS OF
ITS PRESUMPTIVE CONCLUSION.
Hence, res ipsa loquitur is applied in conjunction with the doctrine
of common knowledge."25
II.
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule
THE HONORABLE COURT OF APPEALS ERRED IN of substantive law, but merely a mode of proof or a mere procedural
APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR convenience. The doctrine, when applicable to the facts and
 P a g e | 44

circumstances of a given case, is not meant to and does not dispense the removal of his tonsils, and loss of an eye while the patient
with the requirement of proof of culpable negligence against the plaintiff was under the influence of anesthetic, during or following
party charged. It merely determines and regulates what shall be an operation for appendicitis, among others.
prima facie evidence thereof, and helps the plaintiff in proving a
breach of the duty. The doctrine can be invoked when and only Nevertheless, despite the fact that the scope of res ipsa loquitur has
when, under the circumstances involved, direct evidence is absent been measurably enlarged, it does not automatically apply to all
and not readily available.27 cases of medical negligence as to mechanically shift the burden of
proof to the defendant to show that he is not guilty of the ascribed
The applicability of the doctrine of res ipsa loquitur in medical negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
negligence cases was significantly and exhaustively explained in perfunctorily used but a rule to be cautiously applied, depending
Ramos v. Court of Appeals,28 where the Court said – upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a
Medical malpractice cases do not escape the application of this matter of common knowledge and observation, that the
doctrine. Thus, res ipsa loquitur has been applied when the consequences of professional care were not as such as would
circumstances attendant upon the harm are themselves of such a ordinarily have followed if due care had been exercised. A
character as to justify an inference of negligence as the cause of that distinction must be made between the failure to secure results, and
harm. The application of res ipsa loquitur in medical negligence the occurrence of something more unusual and not ordinarily found
cases presents a question of law since it is a judicial function to if the service or treatment rendered followed the usual procedure of
determine whether a certain set of circumstances does, as a matter of those skilled in that particular practice. It must be conceded that the
law, permit a given inference. doctrine of res ipsa loquitur can have no application in a suit against
a physician or surgeon which involves the merits of a diagnosis or of
Although generally, expert medical testimony is relied upon in a scientific treatment. The physician or surgeon is not required at his
malpractice suits to prove that a physician has done a negligent act peril to explain why any particular diagnosis was not correct, or why
or that he has deviated from the standard medical procedure, when any particular scientific treatment did not produce the desired result.
the doctrine of res ipsa loquitur is availed by the plaintiff, the need Thus, res ipsa loquitur is not available in a malpractice suit if the
for expert medical testimony is dispensed with because the injury only showing is that the desired result of an operation or treatment
itself provides the proof of negligence. The reason is that the general was not accomplished. The real question, therefore, is whether or not
rule on the necessity of expert testimony applies only to such matters in the process of the operation any extraordinary incident or unusual
clearly within the domain of medical science, and not to matters that event outside of the routine performance occurred which is beyond
are within the common knowledge of mankind which may be the regular scope of customary professional activity in such
testified to by anyone familiar with the facts. Ordinarily, only operations, which, if unexplained would themselves reasonably
physicians and surgeons of skill and experience are competent to speak to the average man as the negligent cause or causes of the
testify as to whether a patient has been treated or operated upon with untoward consequence. If there was such extraneous intervention,
a reasonable degree of skill and care. However, testimony as to the the doctrine of res ipsa loquitur may be utilized and the defendant is
statements and acts of physicians and surgeons, external called upon to explain the matter, by evidence of exculpation, if he
appearances, and manifest conditions which are observable by any could.
one may be given by non-expert witnesses. Hence, in cases where
the res ipsa loquitur is applicable, the court is permitted to find a In order to allow resort to the doctrine, therefore, the following
physician negligent upon proper proof of injury to the patient, essential requisites must first be satisfied, to wit: (1) the accident
without the aid of expert testimony, where the court from its fund of was of a kind that does not ordinarily occur unless someone is
common knowledge can determine the proper standard of care. negligent; (2) the instrumentality or agency that caused the injury
Where common knowledge and experience teach that a resulting was under the exclusive control of the person charged; and (3) the
injury would not have occurred to the patient if due care had been injury suffered must not have been due to any voluntary action or
exercised, an inference of negligence may be drawn giving rise to an contribution of the person injured.29
application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what The Court considers the application here of the doctrine of res ipsa
occurred but how and why it occurred. When the doctrine is loquitur inappropriate. Although it should be conceded without
appropriate, all that the patient must do is prove a nexus between the difficulty that the second and third elements were present,
particular act or omission complained of and the injury sustained considering that the anesthetic agent and the instruments were
while under the custody and management of the defendant without exclusively within the control of Dr. Solidum, and that the patient,
need to produce expert medical testimony to establish the standard being then unconscious during the operation, could not have been
of care. Resort to res ipsa loquitur is allowed because there is no guilty of contributory negligence, the first element was undeniably
other way, under usual and ordinary conditions, by which the patient wanting. Luz delivered Gerald to the care, custody and control of his
can obtain redress for injury suffered by him. physicians for a pull-through operation. Except for the imperforate
anus, Gerald was then of sound body and mind at the time of his
Thus, courts of other jurisdictions have applied the doctrine in the submission to the physicians. Yet, he experienced bradycardia
following situations: leaving of a foreign object in the body of the during the operation, causing loss of his senses and rendering him
patient after an operation, injuries sustained on a healthy part of the immobile. Hypoxia, or the insufficiency of oxygen supply to the
body which was not under, or in the area, of treatment, removal of brain that caused the slowing of the heart rate, scientifically termed
the wrong part of the body when another part was intended, as bradycardia, would not ordinarily occur in the process of a pull-
knocking out a tooth while a patient’s jaw was under anesthetic for through operation, or during the administration of anesthesia to the
 P a g e | 45

patient, but such fact alone did not prove that the negligence of any In view of the inapplicability of the doctrine of res ipsa loquitur, the
of his attending physicians, including the anesthesiologists, had Court next determines whether the CA correctly affirmed the
caused the injury. In fact, the anesthesiologists attending to him had conviction of Dr. Solidum for criminal negligence.
sensed in the course of the operation that the lack of oxygen could
have been triggered by the vago-vagal reflex, prompting them to Negligence is defined as the failure to observe for the protection of
administer atropine to the patient.30 the interests of another person that degree of care, precaution, and
vigilance that the circumstances justly demand, whereby such other
This conclusion is not unprecedented. It was similarly reached in person suffers injury.32 Reckless imprudence, on the other hand,
Swanson v. Brigham,31 relevant portions of the decision therein consists of voluntarily doing or failing to do, without malice, an act
being as follows: from which material damage results by reason of an inexcusable lack
of precaution on the part of the person performing or failing to
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall perform such act.33
Swanson to a hospital for the treatment of infectious mononucleosis.
The patient's symptoms had included a swollen throat and some Dr. Solidum’s conviction by the RTC was primarily based on his
breathing difficulty. Early in the morning of January 9 the patient failure to monitor and properly regulate the level of anesthetic agent
was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His administered on Gerald by overdosing at 100% halothane. In
inspection of the patient's air passage revealed that it was in affirming the conviction, the CA observed:
satisfactory condition. At 4:15 a.m. Dr. Brigham received a
telephone call from the hospital, advising him that the patient was On the witness stand, Dr. Vertido made a significant turnaround. He
having respiratory difficulty. The doctor ordered that oxygen be affirmed the findings and conclusions in his report except for an
administered and he prepared to leave for the hospital. Ten minutes observation which, to all intents and purposes, has become the storm
later, 4:25 a.m., the hospital called a second time to advise the doctor center of this dispute. He wanted to correct one piece of information
that the patient was not responding. The doctor ordered that a regarding the dosage of the anesthetic agent administered to the
medicine be administered, and he departed for the hospital. When he child. He declared that he made a mistake in reporting a 100%
arrived, the physician who had been on call at the hospital had begun halothane and said that based on the records it should have been
attempts to revive the patient. Dr. Brigham joined him in the effort, 100% oxygen.
but the patient died.
The records he was relying on, as he explains, are the following:
The doctor who performed the autopsy concluded that the patient
died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a (a) the anesthesia record – A portion of the chart in the
sudden, acute closing of the air passage. He also found that the air record was marked as Exhibit 1-A and 1-B to indicate the
passage had been adequate to maintain life up to 2 or 3 minutes prior administration at intervals of the anesthetic agent.
to death. He did not know what caused the air passage to suddenly
close.
(b) the clinical abstract – A portion of this record that reads
as follows was marked Exhibit 3A. 3B – Approximately 1
xxxx hour and 45 minutes through the operation, patient was
noted to have bradycardia (CR = 70) and ATSO4 0.2 mg
It is a rare occurrence when someone admitted to a hospital for the was immediately administered. However, the bradycardia
treatment of infectious mononucleosis dies of asphyxiation. But that persisted, the inhalational agent was shut off, and the
is not sufficient to invoke res ipsa loquitur. The fact that the injury patient was ventilated with 100% oxygen and another dose
rarely occurs does not in itself prove that the injury was probably of ATSO4 0.2 mg was given. However, the patient did not
caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. respond until no cardiac rate can be auscultated and the
298, 474 P.2d 909 (1970). Nor is a bad result by itself enough to surgeons were immediately told to stop the operation. The
warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d patient was put on a supine position and CPR was initiated.
737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case – Patient was given 1 amp of epinephrine initially while
Res Ipsa Loquitur § 24:10 (1972). The evidence presented is continuously doing cardiac massage – still with no cardiac
insufficient to establish the first element necessary for application of rate appreciated; another ampule of epinephrine was given
res ipsa loquitur doctrine. The acute closing of the patient’s air and after 45 secs, patient’s vital signs returned to normal.
passage and his resultant asphyxiation took place over a very short The entire resuscitation lasted approximately 3-5 mins. The
period of time. Under these circumstances it would not be reasonable surgeons were then told to proceed to the closure and the
to infer that the physician was negligent. There was no palpably child’s vital signs throughout and until the end of surgery
negligent act. The common experience of mankind does not suggest were: BP = 110/70; CR = 116/min and RR = 20-22
that death would not be expected without negligence. And there is cycles/min (on assisted ventilation).
no expert medical testimony to create an inference that negligence
caused the injury. Dr. Vertido points to the crucial passage in the clinical abstract that
the patient was ventilated with 100% oxygen and another dose of
Negligence of Dr. Solidum ATSO4 when the bradycardia persisted, but for one reason or
another, he read it as 100% halothane. He was asked to read the
anesthesia record on the percentage of the dosage indicated, but he
could only sheepishly note I can’t understand the number. There are
 P a g e | 46

no clues in the clinical abstract on the quantity of the anesthetic conclusion – if the application of anesthesia was really closely
agent used. It only contains the information that the anesthetic plan monitored, the event could not have happened.34
was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent The Prosecution did not prove the elements of reckless imprudence
and that 1 hour and 45 minutes after the operation began, beyond reasonable doubt because the circumstances cited by the CA
bradycardia occurred after which the inhalational agent was shut off were insufficient to establish that Dr. Solidum had been guilty of
and the patient administered with 100% oxygen. It would be inexcusable lack of precaution in monitoring the administration of
apparent that the 100% oxygen that Dr. Vertido said should be read the anesthetic agent to Gerald. The Court aptly explained in Cruz v.
in lieu of 100% halothane was the pure oxygen introduced after Court of Appeals35 that:
something went amiss in the operation and the halothane itself was
reduced or shut off. Whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined
The key question remains – what was the quantity of halothane used according to the standard of care observed by other members of the
before bradycardia set in? profession in good standing under similar circumstances bearing in
mind the advanced state of the profession at the time of treatment or
The implication of Dr. Vertido’s admission is that there was no the present state of medical science. In the recent case of Leonila
overdose of the anesthetic agent, and the accused Dr. Solidum stakes Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in
his liberty and reputation on this conclusion. He made the assurance accepting a case, a doctor in effect represents that, having the needed
that he gave his patient the utmost medical care, never leaving the training and skill possessed by physicians and surgeons practicing in
operating room except for a few minutes to answer the call of nature the same field, he will employ such training, care and skill in the
but leaving behind the other members of his team Drs. Abella and treatment of his patients. He therefore has a duty to use at least the
Razon to monitor the operation. He insisted that he administered same level of care that any other reasonably competent doctor would
only a point 1% not 100% halothane, receiving corroboration from use to treat a condition under the same circumstances. It is in this
Dr. Abella whose initial MA in the record should be enough to show aspect of medical malpractice that expert testimony is essential to
that she assisted in the operation and was therefore conversant of the establish not only the standard of care of the profession but also that
things that happened. She revealed that they were using a machine the physician's conduct in the treatment and care falls below such
that closely monitored the concentration of the agent during the standard. Further, inasmuch as the causes of the injuries involved in
operation. malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually
But most compelling is Dr. Solidum’s interpretation of the necessary to support the conclusion as to causation.
anesthesia record itself, as he takes the bull by the horns, so to speak.
In his affidavit, he says, reading from the record, that the quantity of xxxx
halothane used in the operation is one percent (1%) delivered at time
intervals of 15 minutes. He studiedly mentions – the concentration of In litigations involving medical negligence, the plaintiff has the
halothane as reflected in the anesthesia record (Annex D of the burden of establishing appellant's negligence and for a reasonable
complaint-affidavit) is only one percent (1%) – The numbers conclusion of negligence, there must be proof of breach of duty on
indicated in 15 minute increments for halothane is an indication that the part of the surgeon as well as a causal connection of such breach
only 1% halothane is being delivered to the patient Gerard Gercayo and the resulting death of his patient. In Chan Lugay v. St Luke's
for his entire operation; The amount of halothane delivered in this Hospital, Inc., where the attending physician was absolved of
case which is only one percent cannot be summated because liability for the death of the complainant’s wife and newborn baby,
halothane is constantly being rapidly eliminated by the body during this Court held that:
the entire operation.
"In order that there may be a recovery for an injury, however, it must
xxxx be shown that the ‘injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between
In finding the accused guilty, despite these explanations, the RTC the negligence and the injury must be a direct and natural sequence
argued that the volte-face of Dr. Vertido on the question of the of events, unbroken by intervening efficient causes.’ In other words,
dosage of the anesthetic used on the child would not really validate the negligence must be the proximate cause of the injury. For,
the non-guilt of the anesthesiologist. Led to agree that the halothane ‘negligence, no matter in what it consists, cannot create a right of
used was not 100% as initially believed, he was nonetheless unaware action unless it is the proximate cause of the injury complained of.’
of the implications of the change in his testimony. The court And ‘the proximate cause of an injury is that cause, which, in natural
observed that Dr. Vertido had described the condition of the child as and continuous sequence, unbroken by any efficient intervening
hypoxia which is deprivation of oxygen, a diagnosis supported by cause, produces the injury, and without which the result would not
the results of the CT Scan. All the symptoms attributed to a failing have occurred.’"
central nervous system such as stupor, loss of consciousness,
decrease in heart rate, loss of usual acuity and abnormal motor An action upon medical negligence – whether criminal, civil or
function, are manifestations of this condition or syndrome. But why administrative – calls for the plaintiff to prove by competent
would there be deprivation of oxygen if 100% oxygen to 1% evidence each of the following four elements, namely: (a) the duty
halothane was used? Ultimately, to the court, whether oxygen or owed by the physician to the patient, as created by the physician-
halothane was the object of mistake, the detrimental effects of the patient relationship, to act in accordance with the specific norms or
operation are incontestable, and they can only be led to one standards established by his profession; (b) the breach of the duty by
 P a g e | 47

the physician’s failing to act in accordance with the applicable In view of the actuations of the anaesthesiologists and the
standard of care; (3) the causation, i.e., there must be a reasonably administration of anaesthesia, the committee find that the same were
close and causal connection between the negligent act or omission all in accordance with the universally accepted standards of medical
and the resulting injury; and (4) the damages suffered by the care and there is no evidence of any fault or negligence on the part
patient.36 of the anaesthesiologists.

In the medical profession, specific norms or standards to protect the Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National
patient against unreasonable risk, commonly referred to as standards Bureau of Investigation, was also presented as a Prosecution witness,
of care, set the duty of the physician to act in respect of the patient. but his testimony concentrated on the results of the physical
Unfortunately, no clear definition of the duty of a particular examination he had conducted on Gerald, as borne out by the
physician in a particular case exists. Because most medical following portions of his direct examination, to wit:
malpractice cases are highly technical, witnesses with special
medical qualifications must provide guidance by giving the FISCAL CABARON Doctor, what do you mean by General
knowledge necessary to render a fair and just verdict. As a result, the Anesthetic Agent?
standard of medical care of a prudent physician must be determined
from expert testimony in most cases; and in the case of a specialist WITNESS General Anesthetic Agent is a substance used in the
(like an anesthesiologist), the standard of care by which the conduction of Anesthesia and in this case, halothane was used as a
specialist is judged is the care and skill commonly possessed and sole anesthetic agent.
exercised by similar specialists under similar circumstances. The
specialty standard of care may be higher than that required of the
general practitioner.37 xxxx

The standard of care is an objective standard by which the conduct Q Now under paragraph two of page 1 of your report you mentioned
of a physician sued for negligence or malpractice may be measured, that after one hour and 45 minutes after the operation, the patient
and it does not depend, therefore, on any individual physician’s own experienced a bradycardia or slowing of heart rate, now as a doctor,
knowledge either. In attempting to fix a standard by which a court would you be able to tell this Honorable Court as to what cause of
may determine whether the physician has properly performed the the slowing of heart rate as to Gerald Gercayo?
requisite duty toward the patient, expert medical testimony from
both plaintiff and defense experts is required. The judge, as the trier WITNESS Well honestly sir, I cannot give you the reason why there
of fact, ultimately determines the standard of care, after listening to was a bradycardia of time because is some reason one way or
the testimony of all medical experts.38 another that might caused bradycardia.

Here, the Prosecution presented no witnesses with special medical FISCAL CABARON What could be the possible reason?
qualifications in anesthesia to provide guidance to the trial court on
what standard of care was applicable. It would consequently be truly A Well bradycardia can be caused by anesthetic agent itself and that
difficult, if not impossible, to determine whether the first three is a possibility, we’re talking about possibility here.
elements of a negligence and malpractice action were attendant.
Q What other possibility do you have in mind, doctor?
Although the Prosecution presented Dr. Benigno Sulit, Jr., an
anesthesiologist himself who served as the Chairman of the A Well, because it was an operation, anything can happen within
Committee on Ethics and Malpractice of the Philippine Society of that situation.
Anesthesiologists that investigated the complaint against Dr.
Solidum, his testimony mainly focused on how his Committee had
FISCAL CABARON Now, this representation would like to ask you
conducted the investigation.39 Even then, the report of his
about the slowing of heart rate, now what is the immediate cause of
Committee was favorable to Dr. Solidum,40 to wit:
the slowing of the heart rate of a person?
Presented for review by this committee is the case of a 3 year old
WITNESS Well, one of the more practical reason why there is
male who underwent a pull-thru operation and was administered
slowing of the heart rate is when you do a vagal reflex in the neck
general anesthesia by a team of anesthesia residents. The patient, at
wherein the vagal receptors are located at the lateral part of the neck,
the time when the surgeons was manipulating the recto-sigmoid and
when you press that, you produce the slowing of the heart rate that
pulling it down in preparation for the anastomosis, had bradycardia.
produce bradycardia.
The anesthesiologists, sensing that the cause thereof was the
triggering of the vago-vagal reflex, administered atropine to block it
but despite the administration of the drug in two doses, cardiac arrest Q I am pro[p]ounding to you another question doctor, what about the
ensued. As the records show, prompt resuscitative measures were deficiency in the supply of oxygen by the patient, would that also
administered and spontaneous cardiac function re-established in less cause the slowing of the heart rate?
than five (5) minutes and that oxygen was continuously being
administered throughout, unfortunately, as later become manifest, A Well that is a possibility sir, I mean not as slowing of the heart
patient suffered permanent irreversible brain damage. rate, if there is a hypoxia or there is a low oxygen level in the blood,
the normal thing for the heart is to pump or to do not a bradycardia
 P a g e | 48

but a … to counter act the Hypoxia that is being experienced by the administered by Dr. Solidum to the patient is 1% only so may we
patient request that this portion, temporarily your Honor, we are marking
this anesthesia record as our Exhibit 1 and then this 1% Halothane
(sic). also be bracketed and the same be marked as our Exhibit "1-A".

xxxx xxxx

Q Now, you made mention also doctor that the use of general ATTY. COMIA Doctor, my attention was called also when you said
anesthesia using 100% halothane and other anesthetic medications that there are so many factors that contributed to Hypoxia is that
probably were contributory to the production of hypoxia. correct?

A Yes, sir in general sir.41 WITNESS Yes, sir.

On cross-examination, Dr. Vertido expounded more specifically on Q I remember doctor, according to you there are so many factors that
his interpretation of the anesthesia record and the factors that could contributed to what you call hypoxia and according to you, when
have caused Gerald to experience bradycardia, viz: this Gerald suffered hypoxia, there are other factors that might lead
to this Hypoxia at the time of this operation is that correct?
ATTY. COMIA I noticed in, may I see your report Doctor, page 3,
will you kindly read to this Honorable court your last paragraph and WITNESS The possibility is there, sir.
if you will affirm that as if it is correct?
Q And according to you, it might also be the result of such other,
A "The use of General Anesthesia, that is using 100% Halothane some or it might be due to operations being conducted by the doctor
probably will be contributory to the production of Hypoxia and - - - at the time when the operation is being done might also contribute to
-" that hypoxia is that correct?

ATTY COMIA And do you affirm the figure you mentioned in this A That is a possibility also.
Court Doctor?
xxxx
WITNESS Based on the records, I know the - - -
ATTY. COMIA How will you classify now the operation conducted
Q 100%? to this Gerald, Doctor?

A 100% based on the records. WITNESS Well, that is a major operation sir.

Q I will show you doctor a clinical record. I am a lawyer I am not a Q In other words, when you say major operation conducted to this
doctor but will you kindly look at this and tell me where is 100%, Gerald, there is a possibility that this Gerald might [be] exposed to
the word "one hundred" or 1-0-0, will you kindly look at this Doctor, some risk is that correct?
this Xerox copy if you can show to this Honorable Court and even to
this representation the word "one hundred" or 1-0-0 and then call A That is a possibility sir.
me.
Q And which according to you that Gerald suffered hypoxia is that
xxxx correct?

ATTY. COMIA Doctor tell this Honorable Court where is that 100, A Yes, sir.
1-0-0 and if there is, you just call me and even the attention of the
Presiding Judge of this Court. Okay, you read one by one. Q And that is one of the risk of that major operation is that correct?

WITNESS Well, are you only asking 100%, sir? A That is the risk sir.42

ATTY. COMIA I’m asking you, just answer my question, did you At the continuation of his cross-examination, Dr. Vertido maintained
see there 100% and 100 figures, tell me, yes or no? that Gerald’s operation for his imperforate anus, considered a major
operation, had exposed him to the risk of suffering the same
WITNESS I’m trying to look at the 100%, there is no 100% there condition.43 He then corrected his earlier finding that 100%
sir. halothane had been administered on Gerald by saying that it should
be 100% oxygen.44
ATTY. COMIA Okay, that was good, so you Honor please, may we
request also temporarily, because this is just a xerox copy presented Dr. Solidum was criminally charged for "failing to monitor and
by the fiscal, that the percentage here that the Halothane regulate properly the levels of anesthesia administered to said Gerald
 P a g e | 49

Albert Gercayo and using 100% halothane and other anesthetic judgment against Ospital ng Maynila void as the product of grave
medications."45 However, the foregoing circumstances, taken abuse of discretion amounting to lack of jurisdiction.
together, did not prove beyond reasonable doubt that Dr. Solidum
had been recklessly imprudent in administering the anesthetic agent Not surprisingly, the flawed decree raises other material concerns
to Gerald. Indeed, Dr. Vertido’s findings did not preclude the that the RTC and the CA overlooked. We deem it important, then, to
probability that other factors related to Gerald’s major operation, express the following observations for the instruction of the Bench
which could or could not necessarily be attributed to the and Bar.
administration of the anesthesia, had caused the hypoxia and had
then led Gerald to experience bradycardia. Dr. Vertido revealingly For one, Ospital ng Maynila was not at all a party in the proceedings.
concluded in his report, instead, that "although the anesthesiologist Hence, its fundamental right to be heard was not respected from the
followed the normal routine and precautionary procedures, still outset. The R TC and the CA should have been alert to this
hypoxia and its corresponding side effects did occur."46 fundamental defect. Verily, no person can be prejudiced by a ruling
rendered in an action or proceeding in which he was not made a
The existence of the probability about other factors causing the party. Such a rule would enforce the constitutional guarantee of due
hypoxia has engendered in the mind of the Court a reasonable doubt process of law.
as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of
reckless imprudence resulting to serious physical injuries. "A Moreover, Ospital ng Maynila could be held civilly liable only when
reasonable doubt of guilt," according to United States v. subsidiary liability would be properly enforceable pursuant to
Youthsey:47 Article 103 of the Revised Penal Code. But the subsidiary liability
seems far-fetched here. The conditions for subsidiary liability to
x x x is a doubt growing reasonably out of evidence or the lack of it. attach to Ospital ng Maynila should first be complied with. Firstly,
It is not a captious doubt; not a doubt engendered merely by pursuant to Article 103 of the Revised Penal Code, Ospital ng
sympathy for the unfortunate position of the defendant, or a dislike Maynila must be shown to be a corporation "engaged in any kind of
to accept the responsibility of convicting a fellow man. If, having industry." The term industry means any department or branch of art,
weighed the evidence on both sides, you reach the conclusion that occupation or business, especially one that employs labor and
the defendant is guilty, to that degree of certainty as would lead you capital, and is engaged in industry.49 However, Ospital ng Maynila,
to act on the faith of it in the most important and crucial affairs of being a public hospital, was not engaged in industry conducted for
your life, you may properly convict him. Proof beyond reasonable profit but purely in charitable and humanitarian work.50 Secondly,
doubt is not proof to a mathematical demonstration. It is not proof assuming that Ospital ng Maynila was engaged in industry for profit,
beyond the possibility of mistake. Dr. Solidum must be shown to be an employee of Ospital ng
Maynila acting in the discharge of his duties during the operation on
We have to clarify that the acquittal of Dr. Solidum would not Gerald. Yet, he definitely was not such employee but a consultant of
immediately exempt him from civil liability.1âwphi1 But we cannot the hospital. And, thirdly, assuming that civil liability was adjudged
now find and declare him civilly liable because the circumstances against Dr. Solidum as an employee (which did not happen here), the
that have been established here do not present the factual and legal execution against him was unsatisfied due to his being insolvent.
bases for validly doing so. His acquittal did not derive only from
reasonable doubt. There was really no firm and competent showing WHEREFORE, the Court GRANTS the petition for review on
how the injury to Gerard had been caused. That meant that the certiorari; REVERSES AND SETS ASIDE the decision
manner of administration of the anesthesia by Dr. Solidum was not promulgated on January 20, 2010; ACQUITS Dr. Fernando P.
necessarily the cause of the hypoxia that caused the bradycardia Solidum of the crime of reckless imprudence resulting to serious
experienced by Gerard. Consequently, to adjudge Dr. Solidum physical injuries; and MAKES no pronouncement on costs of suit.
civilly liable would be to speculate on the cause of the hypoxia. We
are not allowed to do so, for civil liability must not rest on SO ORDERED.
speculation but on competent evidence.
G.R. No. 158996
Liability of Ospital ng Maynila
November 14, 2008
Although the result now reached has resolved the issue of civil
liability, we have to address the unusual decree of the RTC, as
affirmed by the CA, of expressly holding Ospital ng Maynila civilly SPOUSES FREDELICTO FLORES (deceased) and
liable jointly and severally with Dr. Solidum. The decree was flawed FELICISIMA FLORES, petitioners, vs.
in logic and in law. SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO,
and FLORENCIO, CANDIDA, MARTA, GODOFREDO,
BALTAZAR and LUCENA, all surnamed PINEDA, as heirs of
In criminal prosecutions, the civil action for the recovery of civil the deceased TERESITA S. PINEDA, and UNITED DOCTORS
liability that is deemed instituted with the criminal action refers only MEDICAL CENTER, INC., respondents.
to that arising from the offense charged.48 It is puzzling, therefore,
how the RTC and the CA could have adjudged Ospital ng Maynila
jointly and severally liable with Dr. Solidum for the damages despite BRION, J.:This petition involves a medical negligence case that
the obvious fact that Ospital ng Maynila, being an artificial entity, was elevated to this Court through an appeal by certiorari under
had not been charged along with Dr. Solidum. The lower courts Rule 45 of the Rules of Court. The petition assails the Decision1 of
thereby acted capriciously and whimsically, which rendered their the Court of Appeals (CA) in CA G.R. CV No. 63234, which
 P a g e | 50

affirmed with modification the Decision2 of the Regional Trial Court couch of the clinic while they waited for the doctor. When Dr.
(RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The Fredelicto arrived, he did a routine check-up and ordered Teresita's
dispositive portion of the assailed CA decision states: admission to the hospital. In the admission slip, he directed the
hospital staff to prepare the patient for an "on call" D&C5 operation
WHEREFORE, premises considered, the assailed Decision to be performed by his wife, Dr. Felicisima Flores (Dr. Felicisima).
of the Regional Trial Court of Baloc, Sto. Domingo, Nueva Teresita was brought to her hospital room at around 12 noon; the
Ecija, Branch 37 is hereby AFFIRMED but with hospital staff forthwith took her blood and urine samples for the
modifications as follows: laboratory tests6 which Dr. Fredelicto ordered.

1) Ordering defendant-appellants Dr. and Dra. At 2:40 p.m. of that same day, Teresita was taken to the operating
Fredelicto A. Flores and the United Doctors room. It was only then that she met Dr. Felicisima, an obstetrician
Medical Center, Inc. to jointly and severally pay and gynecologist. The two doctors - Dr. Felicisima and Dr.
Fredelicto, conferred on the patient's medical condition, while the
the plaintiff-appellees - heirs of Teresita Pineda,
namely, Spouses Dominador Pineda and Virginia resident physician and the medical intern gave Dr. Felicisima their
Saclolo and Florencio, Candida, Marta, own briefings. She also interviewed and conducted an internal
Godofredo, Baltazar and Lucena, all surnamed vaginal examination of the patient which lasted for about 15
Pineda, the sum of P400,000.00 by way of moral minutes. Dr. Felicisima thereafter called up the laboratory for the
damages; results of the tests. At that time, only the results for the blood sugar
(BS), uric acid determination, cholesterol determination, and
2) Ordering the above-named defendant-appellants complete blood 7
count (CBC) were available. Teresita's BS count was
to jointly and severally pay the above-named 10.67mmol/l and her CBC was 109g/l.8
plaintiff-appellees the sum of P100,000.00 by way
of exemplary damages; Based on these preparations, Dr. Felicisima proceeded with the D&C
operation with Dr. Fredelicto administering the general anesthesia.
3) Ordering the above-named defendant-appellants The D&C operation lasted for about 10 to 15 minutes. By 3:40 p.m.,
to jointly and severally pay the above-named Teresita was wheeled back to her room.
plaintiff-appellees the sum of P36,000.00 by way
of actual and compensatory damages; and A day after the operation (or on April 29, 1987), Teresita was
subjected to an ultrasound examination as a confirmatory procedure.
4) Deleting the award of attorney's fees and costs The results showed that she had an enlarged uterus and myoma
of suit. uteri.9 Dr. Felicisima, however, advised Teresita that she could
spend her recovery period at home. Still feeling weak, Teresita opted
for hospital confinement.
SO ORDERED.
Teresita's complete laboratory examination results came only on that
While this case essentially involves questions of facts, we opted for day (April 29, 1987). Teresita's urinalysis showed a three plus sign
the requested review in light of questions we have on the findings of (+++) indicating that the sugar in her urine was very high. She was
negligence below, on the awarded damages and costs, and on the then placed under the care of Dr. Amado Jorge, an internist.
importance of this type of ruling on medical practice. 3
By April 30, 1987, Teresita's condition had worsened. She
BACKGROUND FACTS experienced difficulty in breathing and was rushed to the intensive
care unit. Further tests confirmed that she was suffering from
Teresita Pineda (Teresita) was a 51-year old unmarried woman Diabetes Mellitus Type II.10 Insulin was administered on the
living in Sto. Domingo, Nueva Ecija. She consulted on April 17, patient, but the medication might have arrived too late. Due to
1987 her townmate, Dr. Fredelicto Flores, regarding her medical complications induced by diabetes, Teresita died in the morning of
condition. She complained of general body weakness, loss of May 6, 1987.11
appetite, frequent urination and thirst, and on-and-off vaginal
bleeding. Dr. Fredelicto initially interviewed the patient and asked Believing that Teresita's death resulted from the negligent handling
for the history of her monthly period to analyze the probable cause of her medical needs, her family (respondents) instituted an action
of the vaginal bleeding. He advised her to return the following week for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores
or to go to the United Doctors Medical Center (UDMC) in Quezon (collectively referred to as the petitioner spouses) before the RTC of
City for a general check-up. As for her other symptoms, he Nueva Ecija.
suspected that Teresita might be suffering from diabetes and told her
to continue her medications.4
The RTC ruled in favor of Teresita's family and awarded actual,
moral, and exemplary damages, plus attorney's fees and costs.12 The
Teresita did not return the next week as advised. However, when her CA affirmed the judgment, but modified the amount of damages
condition persisted, she went to further consult Dr. Flores at his awarded and deleted the award for attorney's fees and costs of suit.13
UDMC clinic on April 28, 1987, travelling for at least two hours
from Nueva Ecija to Quezon City with her sister, Lucena Pineda.
They arrived at UDMC at around 11:15 a.m.. Lucena later testified Through this petition for review on certiorari, the petitioner spouses
that her sister was then so weak that she had to lie down on the -Dr. Fredelicto (now deceased) and Dr. Felicisima Flores - allege
 P a g e | 51

that the RTC and CA committed a reversible error in finding them D&C is the classic gynecologic procedure for the evaluation and
liable through negligence for the death of Teresita Pineda. possible therapeutic treatment for abnormal vaginal bleeding.20 That
this is the recognized procedure is confirmed by Drs. Salvador Nieto
ASSIGNMENT OF ERRORS (Dr. Nieto) and Joselito Mercado (Dr. Mercado), the expert
witnesses presented by the respondents:
The petitioner spouses contend that they exercised due care and
prudence in the performance of their duties as medical professionals. DR. NIETO: [W]hat I know among obstetricians, if there is
They had attended to the patient to the best of their abilities and bleeding, they perform what we call D&C for diagnostic
undertook the management of her case based on her complaint of an purposes.
on-and-off vaginal bleeding. In addition, they claim that nothing on
record shows that the death of Teresita could have been averted had xxx xxx xxx
they employed means other than what they had adopted in the
ministration of the patient. Q: So are you trying to tell the Court that D&C can be a
diagnostic treatment?
THE COURT'S RULING
A: Yes, sir. Any doctor knows this.21
We do not find the petition meritorious.
Dr. Mercado, however, objected with respect to the time the D&C
The respondents' claim for damages is predicated on their allegation operation should have been conducted in Teresita's case. He opined
that the decision of the petitioner spouses to proceed with the D&C that given the blood sugar level of Teresita, her diabetic condition
operation, notwithstanding Teresita's condition and the laboratory should have been addressed first:
test results, amounted to negligence. On the other hand, the
petitioner spouses contend that a D&C operation is the proper and Q: Why do you consider the time of performance of the
accepted procedure to address vaginal bleeding - the medical D&C not appropriate?
problem presented to them. Given that the patient died after the
D&C, the core issue is whether the decision to proceed with the A: Because I have read the record and I have seen the
D&C operation was an honest mistake of judgment or one urinalysis, [there is] spillage in the urine, and blood sugar
amounting to negligence. was 10.67

Elements of a Medical Negligence Case Q: What is the significance of the spillage in the urine?

A medical negligence case is a type of claim to redress a wrong A: It is a sign that the blood sugar is very high.
committed by a medical professional, that has caused bodily harm to
or the death of a patient. There are four elements involved in a
medical negligence case, namely: duty, breach, injury, and Q: Does it indicate sickness?
proximate causation.14
A: 80 to 95% it means diabetes mellitus. The blood sugar
Duty refers to the standard of behavior which imposes restrictions on was 10.67.
one's conduct.15 The standard in turn refers to the amount of
competence associated with the proper discharge of the profession. xxx xxx xxx
A physician is expected to use at least the same level of care that any
other reasonably competent doctor would use under the same COURT: In other words, the operation conducted on the
circumstances. Breach of duty occurs when the physician fails to patient, your opinion, that it is inappropriate?
comply with these professional standards. If injury results to the
patient as a result of this breach, the physician is answerable for A: The timing of [when] the D&C [was] done, based on the
negligence.16 record, in my personal opinion, that D&C should be
postponed a day or two.22
As in any civil action, the burden to prove the existence of the
necessary elements rests with the plaintiff.17 To successfully pursue a The petitioner spouses countered that, at the time of the operation,
claim, the plaintiff must prove by preponderance of evidence that, there was nothing to indicate that Teresita was afflicted with
one, the physician either failed to do something which a reasonably diabetes: a blood sugar level of 10.67mmol/l did not necessarily
prudent health care provider would have done, or that he did mean that she was a diabetic considering that this was random blood
something that a reasonably prudent provider would not have done; sugar;23 there were other factors that might have caused Teresita's
and two, the failure or action caused injury to the patient.18 Expert blood sugar to rise such as the taking of blood samples during
testimony is therefore essential since the factual issue of whether a lunchtime and while patient was being given intra-venous dextrose.24
physician or surgeon has exercised the requisite degree of skill and Furthermore, they claim that their principal concern was to
care in the treatment of his patient is generally a matter of expert determine the cause of and to stop the vaginal bleeding.
opinion.19
The petitioner spouses' contentions, in our view, miss several points.
Standard of Care and Breach of Duty First, as early as April 17, 1987, Teresita was already suspected to
 P a g e | 52

be suffering from diabetes.25 This suspicion again arose right before that there was profuse vaginal bleeding. The claim that there was
the D&C operation on April 28, 1987 when the laboratory result profuse vaginal bleeding although this was not reflected in the
revealed Teresita's increased blood sugar level.26 Unfortunately, the medical records strikes us as odd since the main complaint is vaginal
petitioner spouses did not wait for the full medical laboratory results bleeding. A medical record is the only document that maintains a
before proceeding with the D&C, a fact that was never considered in long-term transcription of patient care and as such, its maintenance
the courts below. Second, the petitioner spouses were duly advised is considered a priority in hospital practice. Optimal record-keeping
that the patient was experiencing general body weakness, loss of includes all patient inter-actions. The records should always be clear,
appetite, frequent urination, and thirst - all of which are classic objective, and up-to-date.37 Thus, a medical record that does not
symptoms of diabetes.27 When a patient exhibits symptoms typical of indicate profuse medical bleeding speaks loudly and clearly of what
a particular disease, these symptoms should, at the very least, alert it does not contain.
the physician of the possibility that the patient may be afflicted with
the suspected disease: That the D&C operation was conducted principally to diagnose the
cause of the vaginal bleeding further leads us to conclude that it was
Expert testimony for the plaintiff showed that] tests should have been ordered immediately on
merely an elective procedure, not an emergency case. In an elective
admission to the hospital in view of the symptoms presented, and that failure to recognize the existence
procedure, the physician must conduct a thorough pre-operative
of diabetes constitutes negligence.28
evaluation of the patient in order to adequately prepare her for the
operation and minimize possible risks and complications. The
Third, the petitioner spouses cannot claim that their principal internist is responsible for generating a comprehensive evaluation of
concern was the vaginal bleeding and should not therefore be held all medical problems during the pre-operative evaluation.38
accountable for complications coming from other sources. This is a
very narrow and self-serving view that even reflects on their The aim of pre-operative evaluation is not to screen broadly
competence. for undiagnosed disease, but rather to identify and quantify
comorbidity that may impact on the operative outcome.
Taken together, we find that reasonable prudence would have shown This evaluation is driven by findings on history and
that diabetes and its complications were foreseeable harm that physical examination suggestive of organ system
should have been taken into consideration by the petitioner spouses. dysfunction…The goal is to uncover problem areas that
If a patient suffers from some disability that increases the may require further investigation or be amenable to
magnitude of risk to him, that disability must be taken into preoperative optimization.
account so long as it is or should have been known to the
physician.29 And when the patient is exposed to an increased risk, it If the preoperative evaluation uncovers significant
is incumbent upon the physician to take commensurate and adequate comorbidity or evidence of poor control of an underlying
precautions. disease process, consultation with an internist or medical
specialist may be required to facilitate the work-up and
Taking into account Teresita's high blood sugar,30 Dr. Mendoza direct management. In this process, communication
opined that the attending physician should have postponed the D&C between the surgeons and the consultants is essential to
operation in order to conduct a confirmatory test to make a define realistic goals for this optimization process and to
conclusive diagnosis of diabetes and to refer the case to an internist expedite surgical management.39 [Emphasis supplied.]
or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan),
an obstetrician and gynecologist, who stated that the patient's Significantly, the evidence strongly suggests that the pre-operative
diabetes should have been managed by an internist prior to, during, evaluation was less than complete as the laboratory results were
and after the operation.31 fully reported only on the day following the D&C operation. Dr.
Felicisima only secured a telephone report of the preliminary
Apart from bleeding as a complication of pregnancy, vaginal laboratory result prior to the D&C. This preliminary report did not
40
bleeding is only rarely so heavy and life-threatening that urgent first- include the 3+ status of sugar in the patient's urine - a result highly
32
aid measures are required. Indeed, the expert witnesses declared confirmatory of diabetes.
that a D&C operation on a hyperglycemic patient may be justified
only when it is an emergency case - when there is profuse vaginal Because the D&C was merely an elective procedure, the patient's
bleeding. In this case, we choose not to rely on the assertions of the uncontrolled hyperglycemia presented a far greater risk than her on-
petitioner spouses that there was profuse bleeding, not only because and-off vaginal bleeding. The presence of hyperglycemia in a
the statements were self-serving, but also because the petitioner surgical patient is associated with poor clinical outcomes, and
spouses were inconsistent in their testimonies. Dr. Fredelicto aggressive glycemic control positively impacts on morbidity and
testified earlier that on April 28, he personally saw the bleeding,33 mortality.41 Elective surgery in people with uncontrolled diabetes
but later on said that he did not see it and relied only on Teresita's should preferably be scheduled after acceptable glycemic control has
statement that she was bleeding.34 He went on to state that he been achieved.42 According to Dr. Mercado, this is done by
scheduled the D&C operation without conducting any physical administering insulin on the patient.43
examination on the patient.
The management approach in this kind of patients always
The likely story is that although Teresita experienced vaginal includes insulin therapy in combination with dextrose and
bleeding on April 28, it was not sufficiently profuse to necessitate an potassium infusion. Insulin xxx promotes glucose uptake by
immediate emergency D&C operation. Dr. Tan35 and Dr. Mendoza36 the muscle and fat cells while decreasing glucose
both testified that the medical records of Teresita failed to indicate
 P a g e | 53

production by the liver xxx. The net effect is to lower blood explained how surgical stress can aggravate the patient's
glucose levels.44 hyperglycemia: when stress occurs, the diabetic's body, especially
the autonomic system, reacts by secreting hormones which are
The prudent move is to address the patient's hyperglycemic state counter-regulatory; she can have prolonged hyperglycemia which, if
immediately and promptly before any other procedure is undertaken. unchecked, could lead to death.48 Medical literature further explains
In this case, there was no evidence that insulin was administered on that if the blood sugar has become very high, the patient becomes
Teresita prior to or during the D&C operation. Insulin was only comatose (diabetic coma). When this happens over several days, the
administered two days after the operation. body uses its own fat to produce energy, and the result is high levels
of waste products (called ketones) in the blood and urine (called
As Dr. Tan testified, the patient's hyperglycemic condition should diabetic ketoacidiosis, a medical emergency with a significant
have been managed not only before and during the operation, but mortality).49 This was apparently what happened in Teresita's case;
also immediately after. Despite the possibility that Teresita was in fact, after she had been referred to the internist Dr. Jorge,
afflicted with diabetes, the possibility was casually ignored even in laboratory test showed that her blood sugar level shot up to
the post-operative evaluation of the patient; the concern, as the 14.0mmol/l, way above the normal blood sugar range. Thus,
petitioner spouses expressly admitted, was limited to the complaint between the D&C and death was the diabetic complication that
of vaginal bleeding. Interestingly, while the ultrasound test could have been prevented with the observance of standard medical
confirmed that Teresita had a myoma in her uterus, she was advised precautions. The D&C operation and Teresita's death due to
that she could be discharged a day after the operation and that her aggravated diabetic condition is therefore sufficiently established.
recovery could take place at home. This advice implied that a day
after the operation and even after the complete laboratory results The trial court and the appellate court pinned the liability for
were submitted, the petitioner spouses still did not recognize any Teresita's death on both the petitioner spouses and this Court finds
post-operative concern that would require the monitoring of no reason to rule otherwise. However, we clarify that Dr.
Teresita's condition in the hospital. Fredelicto's negligence is not solely the act of ordering an "on call"
D&C operation when he was mainly an anaesthesiologist who had
The above facts, point only to one conclusion - that the petitioner made a very cursory examination of the patient's vaginal bleeding
spouses failed, as medical professionals, to comply with their duty to complaint. Rather, it was his failure from the very start to identify
observe the standard of care to be given to hyperglycemic/diabetic and confirm, despite the patient's complaints and his own suspicions,
patients undergoing surgery. Whether this breach of duty was the that diabetes was a risk factor that should be guarded against, and his
proximate cause of Teresita's death is a matter we shall next participation in the imprudent decision to proceed with the D&C
determine. operation despite his early suspicion and the confirmatory early
laboratory results. The latter point comes out clearly from the
following exchange during the trial:
Injury and Causation
Q: On what aspect did you and your wife consult [with]
As previously mentioned, the critical and clinching factor in a each other?
medical negligence case is proof of the causal connection between
the negligence which the evidence established and the plaintiff's
injuries;45 the plaintiff must plead and prove not only that he had A: We discussed on the finding of the laboratory [results]
been injured and defendant has been at fault, but also that the because the hemoglobin was below normal, the blood sugar
defendant's fault caused the injury. A verdict in a malpractice action was elevated, so that we have to evaluate these laboratory
cannot be based on speculation or conjecture. Causation must be results - what it means.
proven within a reasonable medical probability based upon
competent expert testimony.46 Q: So it was you and your wife who made the evaluation
when it was phoned in?
The respondents contend that unnecessarily subjecting Teresita to a
D&C operation without adequately preparing her, aggravated her A: Yes, sir.
hyperglycemic state and caused her untimely demise. The death
certificate of Teresita lists down the following causes of death: Q: Did your wife, before performing D&C ask your opinion
whether or not she can proceed?
Immediate cause: Cardiorespiratory arrest
A: Yes, anyway, she asked me whether we can do D&C
Antecedent cause: Septicemic shock, based on my experience.
ketoacidocis
Q: And your answer was in the positive notwithstanding
Underlying cause: Diabetes Mellitus II the elevation of blood sugar?
Other significant conditions
A: Yes, sir, it was both our disposition to do the D&C.
contributing to death: Renal Failure - Acute47 [Emphasis supplied.]50

Stress, whether physical or emotional, is a factor that can aggravate If Dr. Fredelicto believed himself to be incompetent to treat the
diabetes; a D&C operation is a form of physical stress. Dr. Mendoza diabetes, not being an internist or a diabetologist (for which reason
 P a g e | 54

he referred Teresita to Dr. Jorge),51 he should have likewise refrained offender.55 We therefore affirm the CA's award as an example to the
from making a decision to proceed with the D&C operation since he medical profession and to stress that the public good requires stricter
was niether an obstetrician nor a gynecologist. measures to avoid the repetition of the type of medical malpractice
that happened in this case.
These findings lead us to the conclusion that the decision to proceed
with the D&C operation, notwithstanding Teresita's hyperglycemia With the award of exemplary damages, the grant of attorney's fees is
and without adequately preparing her for the procedure, was legally in order.56 We therefore reverse the CA decision deleting
contrary to the standards observed by the medical profession. these awards, and grant the respondents the amount of P100,000.00
Deviation from this standard amounted to a breach of duty which as attorney's fees taking into consideration the legal route this case
resulted in the patient's death. Due to this negligent conduct, liability has taken.
must attach to the petitioner spouses.
WHEREFORE, we AFFIRM the Decision of the CA dated June
Liability of the Hospital 20, 2003 in CA G.R. CV No. 63234 finding petitioner spouses liable
for negligent medical practice. We likewise AFFIRM the awards of
In the proceedings below, UDMC was the spouses Flores' co- actual and compensatory damages of P36,000.00; moral damages of
defendant. The RTC found the hospital jointly and severally liable P400,000.00; and exemplary damages of P100,000.00.
with the petitioner spouses, which decision the CA affirmed. In a
Resolution dated August 28, 2006, this Court however denied We MODIFY the CA Decision by additionally granting an award of
UDMC's petition for review on certiorari. Since UDMC's appeal has P50,000.00 as death indemnity and by reversing the deletion of the
been denied and they are not parties to this case, we find it award of attorney's fees and costs and restoring the award of
unnecessary to delve on the matter. Consequently, the RTC's P100,000.00 as attorney's fees. Costs of litigation are adjudged
decision, as affirmed by the CA, stands. against petitioner spouses.

Award of Damages To summarize, the following awards shall be paid to the family of
the late Teresita Pineda:
Both the trial and the appellate court awarded actual damages as
compensation for the pecuniary loss the respondents suffered. The 1. The sum of P36,000.00 by way of actual and compensatory
loss was presented in terms of the hospital bills and expenses the damages; 2. The sum of P50,000.00 by way of death indemnity; 3.
respondents incurred on account of Teresita's confinement and The sum of P400,000.00 by way of moral damages; 4. The sum of
death. The settled rule is that a plaintiff is entitled to be compensated P100,000.00 by way of exemplary damages; 5. The sum of
for proven pecuniary loss.52 This proof the respondents successfully P100,000.00 by way of attorney's fees; and 6. Costs.
presented. Thus, we affirm the award of actual damages of
P36,000.00 representing the hospital expenses the patient incurred. SO ORDERED.

In addition to the award for actual damages, the respondent heirs of G.R. No. 171127
Teresita are likewise entitled to P50,000.00 as death indemnity
pursuant to Article 2206 of the Civil Code, which states that "the
amount of damages for death caused by a xxx quasi-delict shall be at March 11, 2015NOEL CASUMPANG, RUBY SANGA-
least three thousand pesos,53 even though there may have been MIRANDA and SAN JUAN DEDIOS HOSPITAL, Petitioners,
mitigating circumstances xxx." This is a question of law that the CA vs.NELSON CORTEJO, Respondent.
missed in its decision and which we now decide in the respondents'
favor. G.R. No. 171217DRA. RUBY SANGA-MIRANDA, Petitioner, vs.NELSON
CORTEJO, Respondent.

The same article allows the recovery of moral damages in case of G.R. No. 171228SAN JUAN DEDIOS HOSPITAL, Petitioner,
death caused by a quasi-delict and enumerates the spouse, legitimate vs.NELSON CORTEJO, Respondent.
or illegitimate ascendants or descendants as the persons entitled
thereto. Moral damages are designed to compensate the claimant for BRION, J.:
the injury suffered, that is, for the mental anguish, serious anxiety,
wounded feelings which the respondents herein must have surely felt
We resolve the three (3) consolidated petitions for review on
with the unexpected loss of their daughter. We affirm the appellate
Certiorari1 involving medical negligence, commonly assailing the
court's award of P400,000.00 by way of moral damages to the
October 29, 2004 decision2 and the January 12, 2006 resolution3 of
respondents.
the Court of Appeals (CA) in CA-G.R. CV No. 56400. This CA
decision affirmed en totothe ruling of the Regional Trial Court
We similarly affirm the grant of exemplary damages. Exemplary (RTC), Branch 134, Makati City.
damages are imposed by way of example or correction for the public
good.54 Because of the petitioner spouses' negligence in subjecting
The RTC awarded Nelson Cortejo (respondent) damages in the total
Teresita to an operation without first recognizing and addressing her
amount of ₱595,000.00, for the wrongful death of his son allegedly
diabetic condition, the appellate court awarded exemplary damages
due to the medical negligence of the petitioning doctors and the
to the respondents in the amount of P100,000.00. Public policy
hospital.
requires such imposition to suppress the wanton acts of an
 P a g e | 55

Factual Antecedents Thereafter, Dr. Sanga conducted a physical check-up covering

Edmer’s head, eyes, nose, throat, lungs, skin and abdomen; and
The common factual antecedents are briefly summarized below. found that Edmer had a low-grade non-continuing fever, and rashes
that were not typical of dengue fever.17 Her medical findings state:
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa
Cortejo brought her 11-year old son, Edmer Cortejo (Edmer), to the the patient’s rapid breathing and then the lung showed sibilant and
Emergency Room of the San Juan de Dios Hospital (SJDH) because the patient’s nose is flaring which is a sign that the patient is in
of difficulty in breathing, chest pain, stomach pain, and fever.4 respiratory distress; the abdomen has negative finding; the patient
has low grade fever and not continuing; and the rashes in the
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and patient’s skin were not
examined Edmer. In her testimony, Mrs. Cortejo narrated that in the
morning of April 20, 1988, Edmer had developed a slight fever that "Herman’s Rash" and not typical of dengue fever.18
lasted for one day; a few hours upon discovery, she brought Edmer
to their family doctor; and two hours after administering At 3:00 in the afternoon, Edmer once again vomited blood. Upon
medications, Edmer’s fever had subsided.5 seeing Dr. Sanga, the respondent showed her Edmer’s blood
specimen, and reported that Edmer had complained of severe
After taking Edmer’s medical history, Dr. Livelo took his vital signs, stomach pain and difficulty in moving his right leg.19
body temperature, and blood pressure.6 Based on these initial
examinations and the chest x-ray test that followed, Dr. Livelo Dr. Sanga then examined Edmer’s "sputum with blood" and noted
diagnosed Edmer with "bronchopneumonia.7 " Edmer’s blood was that he was bleeding. Suspecting that he could be afflicted with
also taken for testing, typing, and for purposes of administering dengue, she inserted a plastic tube in his nose, drained the liquid
antibiotics. Afterwards, Dr. Livelo gave Edmer an antibiotic from his stomach with ice cold normal saline solution, and gave an
medication to lessen his fever and to loosen his phlegm. instruction not to pull out the tube, or give the patient any oral
medication.
Mrs. Cortejo did not know any doctor at SJDH. She used her
Fortune Care card and was referred to an accredited Fortune Care Dr. Sanga thereafter conducted a tourniquet test, which turned out to
coordinator, who was then out of town. She was thereafter assigned be negative.20 She likewise ordered the monitoring of the patient’s
to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician also blood pressure and some blood tests. Edmer’s blood pressure was
accredited with Fortune Care.8 later found to be normal.21

At 5:30 in the afternoon of the same day, Dr. Casumpang for the first At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang at his
time examined Edmer in his room. Using only a stethoscope, he clinic and told him about Edmer’s condition.22 Upon being
confirmed the initial diagnosis of "Bronchopneumonia."9 informed, Dr. Casumpang ordered several procedures done
including: hematocrit, hemoglobin, blood typing, blood transfusion
At that moment, Mrs. Cortejo recalled entertaining doubts on the and tourniquet tests.
doctor’s diagnosis. She immediately advised Dr. Casumpang that
Edmer had a high fever, and had no colds or cough10 but Dr. The blood test results came at about 6:00 in the evening.
Casumpang merely told her that her son’s "blood pressure is just
being active,"11 and remarked that "that’s the usual Dr. Sanga advised Edmer’s parents that the blood test results showed
bronchopneumonia, no colds, no phlegm."12 Dr. Casumpang next that Edmer was suffering from "Dengue Hemorrhagic Fever." One
visited and examined Edmer at 9:00 in the morning the following hour later, Dr. Casumpang arrived at Edmer’s room and he
day.13 Still suspicious about his son’s illness, Mrs. Cortejo again recommended his transfer to the Intensive Care Unit (ICU), to which
called Dr. Casumpang’s attention and stated that Edmer had a fever, the respondent consented. Since the ICU was then full, Dr.
throat irritation, as well as chest and stomach pain. Mrs. Cortejo also Casumpang suggested to the respondent that they hire a private
alerted Dr. Casumpang about the traces of blood in Edmer’s sputum. nurse. The respondent, however, insisted on transferring his son to
Despite these pieces of information, however, Dr. Casumpang Makati Medical Center.
simply nodded, inquired if Edmer has an asthma, and reassured Mrs.
Cortejo that Edmer’s illness is bronchopneumonia.14 After the respondent had signed the waiver, Dr. Casumpang, for the
last time, checked Edmer’s condition, found that his blood pressure
At around 11:30 in the morning of April 23, 1988, Edmer vomited was stable, and noted that he was "comfortable." The respondent
"phlegm with blood streak"15 prompting the respondent (Edmer’s requested for an ambulance but he was informed that the driver was
father) to request for a doctor at the nurses’ station.16 Forty-five nowhere to be found. This prompted him to hire a private ambulance
minutes later, Dr. Ruby Miranda-Sanga (Dr. Sanga), one of the that cost him ₱600.00.23
resident physicians of SJDH, arrived. She claimed that although
aware that Edmer had vomited "phlegm with blood streak," she At 12:00 midnight, Edmer, accompanied by his parents and by Dr.
failed to examine the blood specimen because the respondent Casumpang, was transferred to Makati Medical Center.
washed it away. She then advised the respondent to preserve the
specimen for examination.
Dr. Casumpang immediately gave the attending physician the
patient’s clinical history and laboratory exam results. Upon
 P a g e | 56

examination, the attending physician diagnosed "Dengue Fever (4) Cost of this suit.
Stage IV" that was already in its irreversible stage.
SO ORDERED.
Edmer died at 4:00 in the morning of April 24, 1988.24 His Death
Certificate indicated the cause of death as "Hypovolemic The petitioners appealed the decision to the CA.
Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."
The Ruling of the Court of Appeals
Believing that Edmer’s death was caused by the negligent and
erroneous diagnosis of his doctors, the respondent instituted an In its decision dated October 29, 2004, the CA affirmed en toto the
action for damages against SJDH, and its attending physicians: Dr. RTC’s ruling, finding that SJDH and its attending physicians failed
Casumpang and Dr. Sanga (collectively referred to as the to exercise the minimum medical care, attention, and treatment
"petitioners") before the RTC of Makati City. expected of an ordinary doctor under like circumstances.

The Ruling of the Regional Trial Court The CA found the petitioning doctors’ failure to read even the most
basic signs of "dengue fever" expected of an ordinary doctor as
In a decision25 dated May 30, 1997, the RTC ruled in favor of the medical negligence. The CA also considered the petitioning doctors’
respondent, and awarded actual and moral damages, plus attorney's testimonies as self-serving, noting that they presented no other
fees and costs. evidence to prove that they exercised due diligence in diagnosing
Edmer’s illness.
In ruling that the petitioning doctors were negligent, the RTC found
untenable the petitioning doctors’ contention that Edmer’s initial The CA likewise found Dr. Rodolfo Jaudian’s (Dr. Jaudian)
symptoms did not indicate dengue fever. It faulted them for heavily testimony admissible. It gave credence to his opinion26 that: (1)
relying on the chest x-ray result and for not considering the other given the exhibited symptoms of the patient, dengue fever should
manifestations that Edmer’s parents had relayed. It held that in definitely be considered, and bronchopneumonia could be
diagnosing and treating an illness, the physician’s conduct should be reasonably ruled out; and (2) dengue fever could have been detected
judged not only by what he/she saw and knew, but also by what earlier than 7:30 in the evening of April 23, 1988 because the
he/she could have reasonably seen and known. It also observed that symptoms were already evident; and agreed with the RTC that the
based on Edmer’s signs and symptoms, his medical history and petitioning doctors should not have solely relied on the chest-x-ray
physical examination, and also the information that the petitioning result, as it was not conclusive.
doctors gathered from his family members, dengue fever was a
reasonably foreseeable illness; yet, the petitioning doctors failed to On SJDH’s solidary liability, the CA ruled that the hospital’s
take a second look, much less, consider these indicators of dengue. liability is based on Article 2180 of the Civil Code. The CA opined
that the control which the hospital exercises over its consultants, the
The trial court also found that aside from their self-serving hospital’s power to hire and terminate their services, all fulfill the
testimonies, the petitioning doctors did not present other evidence to employer-employee relationship requirement under Article 2180.
prove that they exercised the proper medical attention in diagnosing
and treating the patient, leading it to conclude that they were guilty Lastly, the CA held that SJDH failed to adduce evidence showing
of negligence. The RTC also held SJDH solidarily liable with the that it exercised the diligence of a good father of a family in the
petitioning doctors for damages based on the following findings of hiring and the supervision of its physicians.
facts: first, Dr. Casumpang, as consultant, is an ostensible agent of
SJDH because before the hospital engaged his medical services, it
scrutinized and determined his fitness, qualifications, and The petitioners separately moved to reconsider the CA decision, but
competence as a medical practitioner; and second, Dr. Sanga, as the CA denied their motion in its resolution of January 12, 2006;
resident physician, is an employee of SJDH because like Dr. hence, the present consolidated petitions pursuant to Rule 45 of the
Casumpang, the hospital, through its screening committee, Rules of Court.
scrutinized and determined her qualifications, fitness,and
competence before engaging her services; the hospital also exercised The Petitions
control over her work.
I. Dr. Casumpang’s Position (G.R. No. 171127)
The dispositive portion of the decision reads:
Dr. Casumpang contends that he gave his patient medical treatment
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and care to the best of his abilities, and within the proper standard of
and against the defendants, ordering the latter to pay solidarily and care required from physicians under similar circumstances. He
severally plaintiff the following: claims that his initial diagnosis of bronchopneumonia was supported
by the chest x-ray result.
(1) Moral damages in the amount of ₱500,000.00;
Dr. Casumpang also contends that dengue fever occurs only after
(2) Costs of burial and funeral in the amount of ₱45,000.00; several days of confinement. He alleged that when he had suspected
that Edmer might be suffering from dengue fever, he immediately
attended and treated him.
(3) Attorney’s fees of ₱50,000.00; and
 P a g e | 57

Dr. Casumpang likewise raised serious doubts on Dr. Jaudian’s SJDH moreover contends that even if the petitioning doctors are
credibility, arguing that the CA erred in appreciating his testimony considered employees and not merely consultants of the hospital,
as an expert witness since he lacked the necessary training, skills, SJDH cannot still be held solidarily liable under Article 2180 of the
and experience as a specialist in dengue fever cases. Civil Code because it observed the diligence of a good father of a
family in their selection and supervision as shown by the following:
II. Dr. Sanga’s Position (G.R. No. 171217) (1) the adequate measures that the hospital undertakes to ascertain
the petitioning doctors’ qualifications and medical competence; and
In her petition, Dr. Sanga faults the CA for holding her responsible (2) the documentary evidence that the petitioning doctors presented
for Edmer’s wrong diagnosis, stressing that the function of making to prove their competence in the field of pediatrics.27
the diagnosis and undertaking the medical treatment devolved upon
Dr. Casumpang, the doctor assigned to Edmer, and who confirmed SJDH likewise faults the CA for ruling that the petitioning doctors
"bronchopneumonia." are its agents, claiming that this theory, aside from being
inconsistent with the CA’s finding of employment relationship, is
Dr. Sanga also alleged that she exercised prudence in performing her unfounded because: first, the petitioning doctors are independent
duties as a physician, underscoring that it was her professional contractors, not agents of SJDH; and second, as a medical
intervention that led to the correct diagnosis of "Dengue institution, SJDH cannot practice medicine, much more, extend its
Hemorrhagic Fever." Furthermore, Edmer’s Complete Blood Count personality to physicians to practice medicine on its behalf.
(CBC) showed leukopenia and an increase in balance as shown by
the differential count, demonstrating that Edmer’s infection, more or Lastly, SJDH maintains that the petitioning doctors arrived at an
less, is of bacterial and not viral in nature. intelligently deduced and correct diagnosis. It claimed that based on
Edmer's signs and symptoms at the time of admission (i.e., one day
Dr. Sanga as well argued that there is no causal relation between the fever,28 bacterial infection,29 and lack of hemorrhagic
alleged erroneous diagnosis and medication for manifestations30), there was no reasonable indication yet that he
"Bronchopneumonia," and Edmer’s death due to "Dengue was suffering from dengue fever, and accordingly, their failure to
Hemorrhagic Fever." diagnose dengue fever, does not constitute negligence on their part.

Lastly, she claimed that Dr. Jaudianis not a qualified expert witness The Case for the Respondent
since he never presented any evidence of formal residency training
and fellowship status in Pediatrics. In his comment, the respondent submits that the issues the
petitioners raised are mainly factual in nature, which a petition for
III. SJDH’s Position (G.R. No. 171228) review on certiorari under Rule 45 of the Rules of Courts does not
allow.
SJDH, on the other hand, disclaims liability by asserting that Dr.
Casumpang and Dr. Sanga are mere independent contractors and In any case, he contends that the petitioning doctors were negligent
"consultants" (not employees) of the hospital. SJDH alleges that in conducting their medical examination and diagnosis based on the
since it did not exercise control or supervision over the consultants’ following: (1) the petitioning doctors failed to timely diagnose
exercise of medical profession, there is no employer-employee Edmer’s correct illness due to their non-observance of the proper
relationship between them, and consequently, Article 2180 of the and acceptable standard of medical examination; (2) the petitioning
Civil Code does not apply. doctors’ medical examination was not comprehensive, as they were
always in a rush; and (3) the petitioning doctors employed a
guessing game in diagnosing bronchopneumonia.
SJDH likewise anchored the absence of employer-employee
relationship on the following circumstances: (1) SJDH does not hire
consultants; it only grants them privileges to admit patients in the The respondent also alleges that there is a causal connection between
hospital through accreditation; (2) SJDH does not pay the the petitioning doctors’ negligence and Edmer’s untimely death,
consultants wages similar to an ordinary employee; (3) the warranting the claim for damages.
consultants earn their own professional fees directly from their
patients; SJDH does not fire or terminate their services; and (4) The respondent, too, asserted that SJDH is also negligent because it
SJDH does not control or interfere with the manner and the means was not equipped with proper paging system, has no bronchoscope,
the consultants use in the treatment of their patients. It merely and its doctors are not proportionate to the number of its patients. He
provides them with adequate space in exchange for rental payment. also pointed out that out of the seven resident physicians in the
hospital, only two resident physicians were doing rounds at the time
Furthermore, SJDH claims that the CA erroneously applied the of his son’s confinement.
control test when it treated the hospital’s practice of accrediting
consultants as an exercise of control. It explained that the control The Issues
contemplated by law is that which the employer exercises over the:
(i) end result; and the (ii) manner and means to be used to reach this The case presents to us the following issues:
end, and not any kind of control, however significant, in accrediting
the consultants. 1. Whether or not the petitioning doctors had committed
"inexcusable lack of precaution" in diagnosing and in
treating the patient;
 P a g e | 58

2. Whether or not the petitioner hospital is solidarily liable The Elements of a Medical Malpractice Suit
with the petitioning doctors;
The elements of medical negligence are: (1) duty; (2) breach; (3)
3. Whether or not there is a causal connection between the injury; and (4) proximate causation.
petitioners’ negligent act/omission and the patient’s
resulting death; and Duty refers to the standard of behavior that imposes restrictions on
one's conduct.35 It requires proof of professional relationship
4. Whether or not the lower courts erred in considering Dr. between the physician and the patient. Without the professional
Rodolfo Tabangcora Jaudian as an expert witness. relationship, a physician owes no duty to the patient, and cannot
therefore incur any liability.
Our Ruling
A physician-patient relationship is created when a patient engages
We find the petition partly meritorious. the services of a physician,36 and the latter accepts or agrees to
provide care to the patient.37 The establishment of this relationship
A Petition for Review on Certiorari is consensual,38 and the acceptance by the physician essential. The
under Rule 45 of the Rules of Court mere fact that an individual approaches a physician and seeks
is Limited to Questions of Law. diagnosis, advice or treatment does not create the duty of care unless
the physician agrees.39
The settled rule is that the Court’s jurisdiction in a petition for
review on certiorari under Rule 45 of the Rules of Court is limited The consent needed to create the relationship does not always need
only to the review of pure questions of law. It is not the Court’s to be express.40 In the absence of an express agreement, a
function to inquire on the veracity of the appellate court’s factual physician-patient relationship may be implied from the physician’s
findings and conclusions; this Court is not a trier of facts.31 affirmative action to diagnose and/or treat a patient, or in his
participation in such diagnosis and/or treatment.41 The usual
illustration would be the case of a patient who goes to a hospital or a
A question of law arises when there is doubt as to what the law is on clinic, and is examined and treated by the doctor. In this case, we
a certain state of facts, while there is a question of fact when the can infer, based on the established and customary practice in the
doubt arises as to the truth or falsity of the alleged facts.32 medical community that a patient-physician relationship exists.

These consolidated petitions before us involve mixed questions of Once a physician-patient relationship is established, the legal duty of
fact and law. As a rule, we do not resolve questions of fact. care follows. The doctor accordingly becomes duty-bound to use at
However, in determining the legal question of whether the least the same standard of care that a reasonably competent doctor
respondent is entitled to claim damages under Article 2176 of the would use to treat a medical condition under similar circumstances.
Civil Code for the petitioners’ alleged medical malpractice, the
determination of the factual issues – i.e., whether the petitioning
doctors were grossly negligent in diagnosing the patient’s illness, Breach of duty occurs when the doctor fails to comply with, or
whether there is causal relation between the petitioners’ act/omission improperly performs his duties under professional standards. This
and the patient’s resulting death, and whether Dr. Jaudian is determination is both factual and legal, and is specific to each
qualified as an expert witness– must necessarily be resolved. We individual case.42
resolve these factual questions solely for the purpose of determining
the legal issues raised. If the patient, as a result of the breach of duty, is injured in body or
in health, actionable malpractice is committed, entitling the patient
Medical Malpractice Suit as a to damages.43
Specialized Area of Tort Law
To successfully claim damages, the patient must lastly prove the
The claim for damages is based on the petitioning doctors’ causal relation between the negligence and the injury. This
negligence in diagnosing and treating the deceased Edmer, the child connection must be direct, natural, and should be unbroken by any
of the respondent. It is a medical malpractice suit, an action available intervening efficient causes. In other words, the negligence must be
to victims to redress a wrong committed by medical professionals the proximate cause of the injury.44 The injury or damage is
who caused bodily harm to, or the death of, a patient.33 As the term proximately caused by the physician’s negligence when it appears,
is used, the suit is brought whenever a medical practitioner or health based on the evidence and the expert testimony, that the negligence
care provider fails to meet the standards demanded by his profession, played an integral part in causing the injury or damage, and that the
or deviates from this standard, and causes injury to the patient. injury or damage was either a direct result, or a reasonably probable
consequence of the physician’s negligence.45
To successfully pursue a medical malpractice suit, the plaintiff (in
this case, the deceased patient’s heir) must prove that the doctor a. The Relationship Between Dr. Casumpang and Edmer
either failed to do what a reasonably prudent doctor would have
done, or did what a reasonably prudent doctor would not have done; In the present case, the physician-patient relationship between Dr.
and the act or omission had caused injury to the patient.34 The Casumpang and Edmer was created when the latter’s parents sought
patient’s heir/s bears the burden of proving his/her cause of action. the medical services of Dr. Casumpang, and the latter knowingly
accepted Edmer as a patient. Dr. Casumpang’s acceptance is implied
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from his affirmative examination, diagnosis and treatment of Edmer. In the present case, expert testimony is crucial in determining first,
On the other hand, Edmer’s parents, on their son’s behalf, the standard medical examinations, tests, and procedures that the
manifested their consent by availing of the benefits of their health attending physicians should have undertaken in the diagnosis and
care plan, and by accepting the hospital’s assigned doctor without treatment of dengue fever; and second, the dengue fever signs and
objections. symptoms that the attending physicians should have noticed and
considered.
b. The Relationship Between Dr. Sanga and Edmer
Both the RTC and the CA relied largely on Dr. Jaudian’s expert
With respect to Dr. Sanga, her professional relationship with Edmer testimony on dengue diagnosis and management to support their
arose when she assumed the obligation to provide resident finding that the petitioning doctors were guilty of breach of duty of
supervision over the latter. As second year resident doctor tasked to care.
do rounds and assist other physicians, Dr. Sanga is deemed to have
agreed to the creation of physician-patient relationship with the Dr. Jaudian testified that Edmer’s rapid breathing, chest and stomach
hospital’s patients when she participated in the diagnosis and pain, fever, and the presence of blood in his saliva are classic
prescribed a course of treatment for Edmer. symptoms of dengue fever. According to him, if the patient was
admitted for chest pain, abdominal pain, and difficulty in breathing
The undisputed evidence shows that Dr. Sanga examined Edmer coupled with fever, dengue fever should definitely be considered;51
twice (at around 12:00 and 3:30 in the afternoon of April 23, if the patient spits coffee ground with the presence of blood, and the
1988),and in both instances, she prescribed treatment and patient’s platelet count drops to 47,000, it becomes a clear case of
participated in the diagnosis of Edmer’s medical condition. Her dengue fever, and bronchopneumonia can be reasonably ruled out.52
affirmative acts amounted to her acceptance of the physician-patient
relationship, and incidentally, the legal duty of care that went with it. Furthermore, the standard of care according to Dr. Jaudian is to
administer oxygen inhalation, analgesic, and fluid infusion or
In Jarcia, Jr. v. People of the Philippines,46 the Court found the dextrose.53 If the patient had twice vomited fresh blood and
doctors who merely passed by and were requested to attend to the thrombocytopenia has already occurred, the doctor should order
patient, liable for medical malpractice. It held that a physician- blood transfusion, monitoring of the patient every 30 minutes,
patient relationship was established when they examined the patient, hemostatic to stop bleeding, and oxygen if there is difficulty in
and later assured the mother that everything was fine. breathing.54

In the US case of Mead v. Legacy Health System,47 the Court also We find that Dr. Casumpang, as Edmer’s attending physician, did
considered the rendering of an opinion in the course of the patient’s not act according to these standards and, hence, was guilty of breach
care as the doctor’s assent to the physician-patient relationship. It of duty. We do not find Dr. Sanga liable for the reasons discussed
ruled that the relationship was formed because of the doctor’s below.
affirmative action. Likewise, in Wax v. Johnson,48 the court found
that a physician patient relationship was formed between a physician Dr. Casumpang’s Negligence
who "contracts, agrees, undertakes, or otherwise assumes" the
obligation to provide resident supervision at a teaching hospital, and a. Negligence in the Diagnosis
the patient with whom the doctor had no direct or indirect contract.
At the trial, Dr. Casumpang declared that a doctor’s impression
Standard of Care and Breach of Duty regarding a patient’s illness is 90% based on the physical
examination, the information given by the patient or the latter’s
A determination of whether or not the petitioning doctors met the parents, and the patient’s medical history.55 He testified that he did
required standard of care involves a question of mixed fact and law; not consider either dengue fever or dengue hemorrhagic fever
it is factual as medical negligence cases are highly technical in because the patient’s history showed that Edmer had low breath and
nature, requiring the presentation of expert witnesses to provide voluntary submission, and that he was up and about playing
guidance to the court on matters clearly falling within the domain of basketball.56 He based his diagnosis of bronchopneumonia on the
medical science, and legal, insofar as the Court, after evaluating the following observations: "difficulty in breathing, clearing run nostril,
expert testimonies, and guided by medical literature, learned harsh breath sound, tight air, and sivilant sound."57
treatises, and its fund of common knowledge, ultimately determines
whether breach of duty took place. Whether or not Dr. Casumpang It will be recalled that during Dr. Casumpang’s first and second
and Dr. Sanga committed a breach of duty is to be measured by the visits to Edmer, he already had knowledge of Edmer’s laboratory
yardstick of professional standards observed by the other members test result (CBC), medical history, and symptoms (i.e., fever, rashes,
of the medical profession in good standing under similar rapid breathing, chest and stomach pain, throat irritation, difficulty
circumstances.49 It is in this aspect of medical malpractice that in breathing, and traces of blood in the sputum). However, these
expert testimony is essential to establish not only the professional information did not lead Dr. Casumpang to the possibility that
standards observed in the medical community, but also that the Edmer could be suffering from either dengue fever, or dengue
physician’s conduct in the treatment of care falls below such hemorrhagic fever, as he clung to his diagnosis of broncho
standard.50 pneumonia. This means that given the symptoms exhibited, Dr.
Casumpang already ruled out the possibility of other diseases like
dengue.
 P a g e | 60

In other words, it was lost on Dr. Casumpang that the characteristic A: I also told Dr. Casumpang about his chest pain and also stomach
symptoms of dengue (as Dr. Jaudian testified) are: patient’s rapid pain.
breathing; chest and stomach pain; fever; and the presence of blood
in his saliva. All these manifestations were present and known to Dr. Q: So what did Dr. Casumpang do after you have narrated all these
Casumpang at the time of his first and second visits to Edmer. While complaints of your son?
he noted some of these symptoms in confirming bronchopneumonia,
he did not seem to have considered the patient’s other manifestations A: Nothing. He also noticed the rapid breathing of my son and my
in ruling out dengue fever or dengue hemorrhagic fever.58 To our son was almost moving because of rapid breathing and he is swaying
mind, Dr. Casumpang selectively appreciated some, and not all of in the bed.
the symptoms; worse, he casually ignored the pieces of information
that could have been material in detecting dengue fever. This is
evident from the testimony of Mrs. Cortejo: Q: Do you know what action was taken by Dr. Casumpang when
you told him that your son is experiencing a rapid breathing?
TSN, Mrs. Cortejo, November 27, 1990
A: No action. He just asked me if my son has an asthma but I said
none.
Q: Now, when Dr. Casumpang visited your son for the first time at
5:30 p.m., what did he do, if any?
Q: So how long did Dr. Casumpang stay and attended your son on
April 23?
A: He examined my son by using stethoscope and after that, he
confirmed to me that my son was suffering from broncho
pneumonia. A: More or less two (2) minutes then I followed him up to the door
and I repeated about the fever of my son.
Q: After he confirmed that your son was suffering broncho
pneumonia, what did you say if any? Q: What did he tell you, if any, regarding that information you gave
him that your son had a fever?
A: Again, I told Dr. Casumpang, how come it was broncho
pneumonia when my son has no cough or colds. A: He said, that is broncho pneumonia, It’s only being active now.
[Emphasis supplied]
Q: What was the answer of Dr. Casumpang to your statement?
We also find it strange why Dr. Casumpang did not even bother to
check Edmer’s throat despite knowing that as early as 9:00 in the
xxxx morning of April 23, 1988, Edmer had blood streaks in his sputum.
Neither did Dr. Casumpang order confirmatory tests to confirm the
A: And then, Dr. Casumpang answered "THAT’S THE USUAL source of bleeding. The Physician’s Progress Notes59 stated: "Blood
BRONCHO PNEUMONIA, NO COLDS, NO PHLEGM." streaks on phlegm can be due to bronchial irritation or congestion,"
which clearly showed that Dr. Casumpang merely assumed, without
Q: How long did Dr. Casumpang stay in your son’s room? confirmatory physical examination, that bronchopneumonia caused
the bleeding.
A: He stayed for a minute or 2.
Dr. Jaudian likewise opined that Dr. Casumpang’s medical
xxxx examination was not comprehensive enough to reasonably lead to a
correct diagnosis.60 Dr. Casumpang only used a stethoscope in
Q: When Dr. Casumpang arrived at 9:00 o’clock a.m. on April 23, coming up with the diagnosis that Edmer was suffering from
what did you tell him, if any? bronchopneumonia; he never confirmed this finding with the use of
a bronchoscope. Furthermore, Dr. Casumpang based his diagnosis
largely on the chest x-ray result that is generally inconclusive.61
xxxx
Significantly, it was only at around 5:00 in the afternoon of April 23,
A: I told Dr. Casumpang… After examining my son using 1988 (after Edmer’s third episode of bleeding) that Dr. Casumpang
stethoscope and nothing more, I told Dr. Casumpang about the traces ordered the conduct of hematocrit, hemoglobin, blood typing, blood
of blood in my son’s sputum and I told him what is all about and he transfusion and tourniquet tests. These tests came too late, as proven
has throat irritation. by: (1) the blood test results that came at about 6:00 in the evening,
confirming that Edmer’s illness had developed to "Dengue
Q: What did he tell you? Hemorrhagic Fever;" and (2) Dr. Jaudian’s testimony that "dengue
fever could have been detected earlier than 7:30 in the evening of
A: He just nodded his head but he did not take the initiative of April 23, 1988 because the symptoms were already evident."62
looking at the throat of my son.
In Spouses Flores v. Spouses Pineda,63 a case involving a medical
Q: So what happened after that? malpractice suit, the Court ruled that the petitioner doctors were
negligent because they failed to immediately order tests to confirm
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the patient’s illness. Despite the doctors’ suspicion that the patient In the present case, evidence on record established that in confirming
could be suffering from diabetes, the former still proceeded to the the diagnosis of bronchopneumonia, Dr. Casumpang selectively
D&C operation. In that case, expert testimony showed that tests appreciated some and not all of the symptoms presented, and failed
should have been ordered immediately on admission to the hospital to promptly conduct the appropriate tests to confirm his findings. In
in view of the symptoms presented. The Court held: sum, Dr. Casumpang failed to timely detect dengue fever, which
failure, especially when reasonable prudence would have shown that
When a patient exhibits symptoms typical of a particular disease, indications of dengue were evident and/or foreseeable, constitutes
these symptoms should, at the very least, alert the physician of the negligence.
possibility that the patient may be afflicted with the suspected
disease. a. Negligence in the Treatment and Management of Dengue

The Court also ruled that reasonable prudence would have shown Apart from failing to promptly detect dengue fever, Dr. Casumpang
that diabetes and its complications were foreseeable harm. However, also failed to promptly undertake the proper medical management
the petitioner doctors failed to take this into consideration and needed for this disease.
proceeded with the D&C operation. Thus, the Court ruled that they
failed to comply with their duty to observe the standard of care to be As Dr. Jaudian opined, the standard medical procedure once the
given to hyperglycemic/diabetic patients. patient had exhibited the classic symptoms of dengue fever should
have been: oxygen inhalation, use of analgesic, and infusion of
Similarly, in Jarcia,64 involving the negligence of the doctors in fluids or dextrose;67 and once the patient had twice vomited fresh
failing to exercise reasonable prudence in ascertaining the extent of blood, the doctor should have ordered: blood transfusion, monitoring
the patient’s injuries, this Court declared that: of the patient every 30 minutes, hemostatic to stop bleeding, and
oxygen if there is difficulty in breathing.68
In failing to perform an extensive medical examination to determine
the extent of Roy Jr.’s injuries, Dr. Jarcia and Dr. Bastan were Dr. Casumpang failed to measure up to these standards. The
remiss of their duties as members of the medical profession. evidence strongly suggests that he ordered a transfusion of platelet
Assuming for the sake of argument that they did not have the concentrate instead of blood transfusion. The tourniquet test was
capacity to make such thorough evaluation at that stage, they should only conducted after Edmer’s second episode of bleeding, and the
have referred the patient to another doctor with sufficient training medical management (as reflected in the records) did not include
and experience instead of assuring him and his mother that antibiotic therapy and complete physical examination. Dr.
everything was all right. [Emphasis supplied] Casumpang’s testimony states:

Even assuming that Edmer’s symptoms completely coincided with Q: Now, after entertaining – After considering that the patient Edmer
the diagnosis of bronchopneumonia (so that this diagnosis could not Cortero was already suffering from dengue hemorrhagic fever, what
be considered "wrong"), we still find Dr. Casumpang guilty of did you do, if any?
negligence.
A: We ordered close monitoring of the blood pressure, the cardiac
First, we emphasize that we do not decide the correctness of a rate and respiratory rate of the patient.
doctor’s diagnosis, or the accuracy of the medical findings and
treatment. Our duty in medical malpractice cases is to decide – based Q: Now, was your instructions carried on?
on the evidence adduced and expert opinion presented– whether a
breach of duty took place. A: Yes, sir.

Second, we clarify that a wrong diagnosis is not by itself medical Q: What was the blood pressure of the patient?
malpractice.65 Physicians are generally not liable for damages
resulting from a bona fide error of judgment. Nonetheless, when the
physician’s erroneous diagnosis was the result of negligent conduct A: During those times, the blood pressure of the patient was even
(e.g., neglect of medical history, failure to order the appropriate normal during those times.
tests, failure to recognize symptoms), it becomes an evidence of
medical malpractice. Q: How about the respiratory rate?

Third, we also note that medicine is not an exact science;66 and A: The respiratory rate was fast because the patient in the beginning
doctors, or even specialists, are not expected to give a 100% accurate since admission had difficulty in breathing.
diagnosis in treating patients who come to their clinic for
consultations. Error is possible as the exercise of judgment is called Q: Then, after that, what did you do with the patient? Doctor?
for in considering and reading the exhibited symptoms, the results of
tests, and in arriving at definitive conclusions. But in doing all these, A: We transfused platelet concentrate and at the same time, we
the doctor must have acted according to acceptable medical practice monitor [sic] the patient.
standards.
Q: Then, who monitor [sic] the patient?
 P a g e | 62

A: The pediatric resident on duty at that time. physicians (or "residents")72 function under the supervision of
attending physicians73 or of the hospital’s teaching staff. Under this
Q: Now, what happened after that? arrangement, residents operate merely as subordinates who usually
defer to the attending physician on the decision to be made and on
Q: While monitoring the patient, all his vital signs were _____; his the action to be taken.
blood pressure was normal so we continued with the supportive
management at that time. The attending physician, on the other hand, is primarily responsible
for managing the resident’s exercise of duties. While attending and
Q: Now, after that? resident physicians share the collective responsibility to deliver safe
and appropriate care to the patients,74 it is the attending physician
who assumes the principal responsibility of patient care.75 Because
A: In the evening of April 23, 1988, I stayed in the hospital and I he/she exercises a supervisory role over the resident, and is
was informed by the pediatric resident on duty at around 11:15 in the ultimately responsible for the diagnosis and treatment of the patient,
evening that the blood pressure of the patient went down to .60 the standards applicable to and the liability of the resident for
palpatory. medical malpractice is theoretically less than that of the attending
physician. These relative burdens and distinctions, however, do not
Q: What did you do upon receipt of that information? translate to immunity from the legal duty of care for residents,76 or
from the responsibility arising from their own negligent act.
A: I immediately went up to the room of the patient and we changed
the IV fluid from the present fluid which was D5 0.3 sodium In Jenkins v. Clark,77 the Ohio Court of Appeals held that the
chloride to lactated ringers solution. applicable standard of care in medical malpractice cases involving
first-year residents was that of a reasonably prudent physician and
Q: You mean to say you increased the dengue [sic] of the intervenus not that of interns. According to Jenkins:
[sic] fluid?
It is clear that the standard of care required of physicians is not an
A: We changed the IV fluid because lactated ringers was necessary individualized one but of physicians in general in the community. In
to resume the volume and to bring back the blood pressure, to order to establish medical malpractice, it must be shown by a
increase the blood pressure. [Emphasis supplied] preponderance of the evidence that a physician did some particular
thing or things that a physician or surgeon of ordinary skill, care and
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo diligence would not have done under like or similar conditions or
Jagonap and Dr. Ellewelyn Pasion (Dr. Pasion), Personnel Officer circumstances, or that he failed or omitted to do some particular
and Medical Director of SJDH, respectively as well as the thing or things that a physician or surgeon of ordinary skill, care and
testimonies of Dr. Livelo and Dr. Reyes (the radiologist who read diligence would have done under like or similar conditions or
Edmer’s chest x-ray result), these witnesses failed to dispute the circumstances, and that the inquiry complained of was the direct
standard of action that Dr. Jaudian established in his expert opinion. result of such doing or failing to do such thing or things.
We cannot consider them expert witnesses either for the sole reason
that they did not testify on the standard of care in dengue cases.69 We note that the standard of instruction given by the court was
indeed a proper one. It clearly informed the jury that the medical
On the whole, after examining the totality of the adduced evidence, care required is that of reasonably careful physicians or hospital
we find that the lower courts correctly did not rely on Dr. emergency room operators, not of interns or residents. [Emphasis
Casumpang’s claim that he exercised prudence and due diligence in supplied]
handling Edmer’s case. Aside from being self-serving, his claim is
not supported by competent evidence. As the lower courts did, we A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and
rely on the uncontroverted fact that he failed, as a medical held that interns and first-year residents are "practitioners of
professional, to observe the most prudent medical procedure under medicine required to exercise the same standard of care applicable to
the circumstances in diagnosing and treating Edmer. physicians with unlimited licenses to practice." The Indiana Court
held that although a first-year resident practices under a temporary
Dr. Sanga is Not Liable for Negligence medical permit, he/she impliedly contracts that he/she has the
reasonable and ordinary qualifications of her profession and that
he/she will exercise reasonable skill, diligence, and care in treating
In considering the case of Dr. Sanga, the junior resident physician
the patient.
who was on-duty at the time of Edmer’s confinement, we see the
need to draw distinctions between the responsibilities and
corresponding liability of Dr. Casumpang, as the attending We find that Dr. Sanga was not independently negligent. Although
physician, and that of Dr. Sanga. she had greater patient exposure, and was subject to the same
standard of care applicable to attending physicians, we believe that a
finding of negligence should also depend on several competing
In his testimony, Dr. Pasion declared that resident applicants are
factors, among them, her authority to make her own diagnosis, the
generally doctors of medicine licensed to practice in the Philippines
degree of supervision of the attending physician over her, and the
and who would like to pursue a particular specialty.70 They are
shared responsibility between her and the attending physicians.
usually the front line doctors responsible for the first contact with the
patient. During the scope of the residency program,71 resident
 P a g e | 63

In this case, before Dr. Sanga attended to Edmer, both Dr. Livelo that it was a mucous (sic) produced by broncho pneumonia, And
and Dr. Casumpang had diagnosed Edmer with bronchopneumonia. besides the patient did not even show any signs of any other illness
In her testimony, Dr. Sanga admitted that she had been briefed about at that time.83
Edmer’s condition, his medical history, and initial diagnosis;79 and
based on these pieces of information, she confirmed the finding of Based on her statements we find that Dr. Sanga was not entirely
bronchopneumonia. faultless. Nevertheless, her failure to discern the import of Edmer’s
second bleeding does not necessarily amount to negligence as the
Dr. Sanga likewise duly reported to Dr. Casumpang, who admitted respondent himself admitted that Dr. Sanga failed to examine the
receiving updates regarding Edmer’s condition.80 There is also blood specimen because he wash edit away. In addition, considering
evidence supporting Dr. Sanga’s claim that she extended diligent the diagnosis previously made by two doctors, and the
care to Edmer. In fact, when she suspected – during Edmer’s second uncontroverted fact that the burden of final diagnosis pertains to the
episode of bleeding– that Edmer could be suffering from dengue attending physician (in this case, Dr. Casumpang), we believe that
fever, she wasted no time in conducting the necessary tests, and Dr. Sanga’s error was merely an honest mistake of judgment
promptly notified Dr. Casumpang about the incident. Indubitably, influenced in no small measure by her status in the hospital
her medical assistance led to the finding of dengue fever. hierarchy; hence, she should not be held liable for medical
negligence.
We note however, that during Edmer’s second episode of
bleeding,81 Dr. Sanga failed to immediately examine and note the Dr. Jaudian’s Professional Competence and Credibility
cause of the blood specimen. Like Dr. Casumpang, she merely
assumed that the blood in Edmer’s phlegm was caused by One of the critical issues the petitioners raised in the proceedings
bronchopneumonia. Her testimony states: before the lower court and before this Court was Dr. Jaudian’s
competence and credibility as an expert witness. The petitioners
TSN, June 8, 1993: tried to discredit his expert testimony on the ground that he lacked
the proper training and fellowship status in pediatrics.
Q: Let us get this clear, you said that the father told you the patient
cocked [sic] out phlegm. ● Criteria in Qualifying as an Expert Witness

A: With blood streak. The competence of an expert witness is a matter for the trial court to
decide upon in the exercise of its discretion. The test of qualification
Q: Now, you stated specimen, were you not able to examine the is necessarily a relative one, depending upon the subject matter of
specimen? the investigation, and the fitness of the expert witness.84 In our
jurisdiction, the criterion remains to be the expert witness’ special
A: No, sir, I did not because according to the father he wash [sic] his knowledge experience and practical training that qualify him/her to
hands. explain highly technical medical matters to the Court.

xxxx In Ramos v. Court of Appeals,85 the Court found the expert witness,
who is a pulmonologist, not qualified to testify on the field of
anesthesiology. Similarly, in Cereno v. Court of Appeals,86 a 2012
Q: Now, from you knowledge, what does that indicate if the patient case involving medical negligence, the Court excluded the testimony
expels a phlegm and blood streak? of an expert witness whose specialty was anesthesiology, and
concluded that an anesthesiologist cannot be considered an expert in
A: If a patient cocked [sic] out phlegm then the specimen could have the field of surgery or even in surgical practices and diagnosis.
come from the lung alone.82 [Emphasis supplied]
Interestingly in this case, Dr. Jaudian, the expert witness was
xxxx admittedly not a pediatrician but a practicing physician who
specializes in pathology.87 He likewise does not possess any formal
TSN, June 17, 1993: residency training in pediatrics. Nonetheless, both the lower courts
found his knowledge acquired through study and practical
Q: Now, in the first meeting you had, when that was relayed to you experience sufficient to advance an expert opinion on dengue-related
by the father that Edmer Cortejo had coughed out blood, what cases.
medical action did you take?
We agree with the lower courts.
A: I examined the patient and I thought that, that coughed out
phlegm was a product of broncho pneumonia. A close scrutiny of Ramos and Cereno reveals that the Court
primarily based the witnesses’ disqualification to testify as an expert
xxxx on their incapacity to shed light on the standard of care that must be
observed by the defendant-physicians. That the expert witnesses’
specialties do not match the physicians’ practice area only
Q: So what examination did you specifically conduct to see that
constituted, at most, one of the considerations that should not be
there was no internal bleeding? A: At that time I did not do anything
taken out of context. After all, the sole function of a medical expert
to determine the cause of coughing of the blood because I presumed
 P a g e | 64

witness, regardless of his/her specialty, is to afford assistance to the duly licensed and practicing physician has gained knowledge of the
courts on medical matters, and to explain the medical facts in issue. standard of care applicable to a specialty in which he is not directly
engaged but as to which he has an opinion based on education,
Furthermore, there was no reasonable indication in Ramos and experience, observation, or association wit that specialty, his opinion
Cereno that the expert witnesses possess a sufficient familiarity with is competent.(Emphasis supplied)
the standard of care applicable to the physicians’ specialties. US
jurisprudence on medical malpractice demonstrated the trial courts’ Finally, Brown v. Mladineo92 adhered to the principle that the
wide latitude of discretion in allowing a specialist from another field witness’ familiarity, and not the classification by title or specialty,
to testify against a defendant specialist. which should control issues regarding the expert witness’
qualifications:
In Brown v. Sims,88 a neurosurgeon was found competent to give
expert testimony regarding a gynecologist's standard of pre-surgical The general rule as to expert testimony in medical malpractice
care. In that case, the court held that since negligence was not actions is that "a specialist in a particular branch within a profession
predicated on the gynecologist’s negligent performance of the will not be required." Most courts allow a doctor to testify if they are
operation, but primarily on the claim that the pre-operative histories satisfied of his familiarity with the standards of a specialty, though
and physicals were inadequate, the neurosurgeon was competent to he may not practice the specialty himself. One court explained that
testify as an expert. "it is the scope of the witness’ knowledge and not the artificial
classification by title that should govern the threshold question of
Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify admissibility. (Citations omitted)
against a neurologist in a medical malpractice action. The court
considered that the orthopedic surgeon’s opinion on the "immediate ● Application to the Present Case
need for decompression" need not come from a specialist in
neurosurgery. The court held that: In the case and the facts before us, we find that Dr. Jaudian is
competent to testify on the standard of care in dengue fever
It is well established that "the testimony of a qualified medical cases.1avvphi1
doctor cannot be excluded simply because he is not a specialist x x
x." The matter of "x x x training and specialization of the witness Although he specializes in pathology, it was established during trial
goes to the weight rather than admissibility x x x." that he had attended not less than 30 seminars held by the Pediatric
Society, had exposure in pediatrics, had been practicing medicine for
xxxx 16 years, and had handled not less than 50 dengue related cases.

It did not appear to the court that a medical doctor had to be a As a licensed medical practitioner specializing in pathology, who
specialist in neurosurgery to express the opinions permitted to be had practical and relevant exposure in pediatrics and dengue related
expressed by plaintiffs’ doctors, e.g., the immediate need for a cases, we are convinced that Dr. Jaudian demonstrated sufficient
decompression in the light of certain neurological deficits in a post- familiarity with the standard of care to be applied in dengue fever
laminectomy patient. As stated above, there was no issue as to the cases. Furthermore, we agree that he possesses knowledge and
proper execution of the neurosurgery. The medical testimony experience sufficient to qualify him to speak with authority on the
supported plaintiffs’ theory of negligence and causation. (Citations subject.
omitted)
The Causation Between Dr. Casumpang’s
In another case,90 the court declared that it is the specialist’s Negligent Act/Omission, and the Patient’s
knowledge of the requisite subject matter, rather than his/her Resulting Death was Adequately Proven
specialty that determines his/her qualification to testify.
Dr. Jaudian’s testimony strongly suggests that due to Dr.
Also in Evans v. Ohanesian,91 the court set a guideline in qualifying Casumpang’s failure to timely diagnose Edmer with dengue, the
an expert witness: latter was not immediately given the proper treatment. In fact, even
after Dr. Casumpang had discovered Edmer’s real illness, he still
To qualify a witness as a medical expert, it must be shown that the failed to promptly perform the standard medical procedure. We
witness (1) has the required professional knowledge, learning and agree with these findings.
skill of the subject under inquiry sufficient to qualify him to speak
with authority on the subject; and (2) is familiar with the standard As the respondent had pointed out, dengue fever, if left untreated,
required of a physician under similar circumstances; where a witness could be a life threatening disease. As in any fatal diseases, it
has disclosed sufficient knowledge of the subject to entitle his requires immediate medical attention.93 With the correct and timely
opinion to go to the jury, the question of the degree of his knowledge diagnosis, coupled with the proper medical management, dengue
goes more to the weight of the evidence than to its admissibility. fever is not a life threatening disease and could easily be cured.94

xxxx Furthermore, as Dr. Jaudian testified, with adequate intensive care,

the mortality rate of dengue fever should fall to less than 2%. Hence,
Nor is it critical whether a medical expert is a general practitioner or the survival of the patient is directly related to early and proper
a specialist so long as he exhibits knowledge of the subject. Where a management of the illness.95
 P a g e | 65

To reiterate, Dr. Casumpang failed to timely diagnose Edmer with In determining whether an employer-employee relationship exists
dengue fever despite the presence of its characteristic symptoms; and between the parties, the following elements must be present: (1)
as a consequence of the delayed diagnosis, he also failed to promptly selection and engagement of services; (2) payment of wages; (3) the
manage Edmer’s illness. Had he immediately conducted power to hire and fire; and (4) the power to control not only the end
confirmatory tests, (i.e., tourniquet tests and series of blood tests)and to be achieved, but the means to be used in reaching such an end.97
promptly administered the proper care and management needed for
dengue fever, the risk of complications or even death, could have Control, which is the most crucial among the elements, is not present
been substantially reduced. in this case.

Furthermore, medical literature on dengue shows that early diagnosis Based on the records, no evidence exists showing that SJDH
and management of dengue is critical in reducing the risk of exercised any degree of control over the means, methods of
complications and avoiding further spread of the virus.96 That procedure and manner by which the petitioning doctors conducted
Edmer later died of "Hypovolemic Shock/hemorrhagic shock," and performed their medical profession. SJDH did not control their
"Dengue Hemorrhagic Fever Stage IV," a severe and fatal form of diagnosis and treatment. Likewise, no evidence was presented to
dengue fever, established the causal link between Dr. Casumpang’s show that SJDH monitored, supervised, or directed the petitioning
negligence and the injury. doctors in the treatment and management of Edmer’s case. In these
lights, the petitioning doctors were not employees of SJDH, but were
Based on these considerations, we rule that the respondent mere independent contractors.
successfully proved the element of causation.
SJDH is Solidarily Liable Based
Liability of SJDH on The Principle of Agency or Doctrine
of Apparent Authority
We now discuss the liability of the hospital.
Despite the absence of employer-employee relationship between
The respondent submits that SJDH should not only be held SJDH and the petitioning doctors, SJDH is not free from liability.98
vicariously liable for the petitioning doctors’ negligence but also for
its own negligence. He claims that SJDH fell short of its duty of As a rule, hospitals are not liable for the negligence of its
providing its patients with the necessary facilities and equipment as independent contractors. However, it may be found liable if the
shown by the following circumstances: physician or independent contractor acts as an ostensible agent of the
hospital. This exception is also known as the "doctrine of apparent
(a) SJDH was not equipped with proper paging system; authority."99

(b) the number of its doctors is not proportionate to the The US case of Gilbert v. Sycamore Municipal Hospital100
number of patients; abrogated the hospitals’ immunity to vicarious liability of
independent contractor physicians. In that case, the Illinois Supreme
(c) SJDH was not equipped with a bronchoscope; Court held that under the doctrine of apparent authority, hospitals
could be found vicariously liable for the negligence of an
independent contractor:
(d) when Edmer’s oxygen was removed, the medical staff
did not immediately provide him with portable oxygen;
Therefore, we hold that, under the doctrine of apparent authority, a
hospital can be held vicariously liable for the negligent acts of a
(e) when Edmer was about to be transferred to another physician providing care at the hospital, regardless of whether the
hospital, SJDH’s was not ready and had no driver; and physician is an independent contractor, unless the patient knows, or
should have known, that the physician is an independent contractor.
(f) despite Edmer’s critical condition, there was no doctor The elements of the action have been set out as follows:
attending to him from 5:30 p.m. of April 22, to 9:00 a.m. of
April 23, 1988. For a hospital to be liable under the doctrine of apparent authority, a
plaintiff must show that: (1) the hospital, or its agent, acted in a
SJDH on the other hand disclaims liability by claiming that the manner that would lead a reasonable person to conclude that the
petitioning doctors are not its employees but are mere consultants individual who was alleged to be negligent was an employee or
and independent contractors. agent of the hospital; (2) where the acts of the agent create the
appearance of authority, the plaintiff must also prove that the
We affirm the hospital’s liability not on the basis of Article 2180 of hospital had knowledge of and acquiesced in them; and (3) the
the Civil Code, but on the basis of the doctrine of apparent authority plaintiff acted in reliance upon the conduct of the hospital or its
or agency by estoppel. agent, consistent with ordinary care and prudence. (Emphasis
supplied)
There is No Employer-Employee Relationship
The doctrine was applied in Nogales v. Capitol Medical Center101
Between SJDH and the Petitioning Doctors where this Court, through the ponencia of Associate Justice Antonio
 P a g e | 66

T. Carpio, discussed the two factors in determining hospital liability In Pamperin, the court held that the important consideration in
as follows: determining the patient’s reliance is: whether the plaintiff is seeking
care from the hospital itself or whether the plaintiff is looking to the
The first factor focuses on the hospital’s manifestations and is hospital merely as a place for his/her personal physician to provide
sometimes described as an inquiry whether the hospital acted in a medical care.105 Thus, this requirement is deemed satisfied if the
manner which would lead a reasonable person to conclude that the plaintiff can prove that he/she relied upon the hospital to provide
individual who was alleged to be negligent was an employee or care and treatment, rather than upon a specific physician. In this
agent of the hospital. In this regard, the hospital need not make case, we shall limit the determination of the hospital’s apparent
express representations to the patient that the treating physician is an authority to Dr. Casumpang, in view of our finding that Dr. Sanga is
employee of the hospital; rather a representation may be general and not liable for negligence.
implied.
SJDH Clothed Dr. Casumpang With Apparent Authority
xxxx
SJDH impliedly held out and clothed Dr. Casumpang with apparent
The second factor focuses on the patient's reliance. It is sometimes authority leading the respondent to believe that he is an employee or
characterized as an inquiry on whether the plaintiff acted in reliance agent of the hospital.
upon the conduct of the hospital or its agent, consistent with
ordinary care and prudence. (Citation omitted) Based on the records, the respondent relied on SJDH rather than
upon Dr. Casumpang, to care and treat his son Edmer. His testimony
In sum, a hospital can be held vicariously liable for the negligent during trial showed that he and his wife did not know any doctors at
acts of a physician (or an independent contractor) providing care at SJDH; they also did not know that Dr. Casumpang was an
the hospital if the plaintiff can prove these two factors: first, the independent contractor. They brought their son to SJDH for
hospital’s manifestations; and second, the patient’s reliance. diagnosis because of their family doctor’s referral. The referral did
not specifically point to Dr. Casumpang or even to Dr. Sanga, but to
a. Hospital’s manifestations SJDH. Significantly, the respondent had relied on SJDH’s
representation of Dr. Casumpang’s authority. To recall, when Mrs.
Cortejo presented her Fortune Care card, she was initially referred to
It involves an inquiry on whether the hospital acted in a manner that the Fortune Care coordinator, who was then out of town. She was
would lead a reasonable person to conclude that the individual thereafter referred to Dr. Casumpang, who is also accredited with
alleged to be negligent was an employee or agent of the hospital. As Fortune Care. In both instances, SJDH through its agent failed to
pointed out in Nogales, the hospital need not make express advise Mrs. Cortejo that Dr. Casumpang is an independent
representations to the patient that the physician or independent contractor.
contractor is an employee of the hospital; representation may be
general and implied.102
Mrs. Cortejo accepted Dr. Casumpang’s services on the reasonable
belief that such were being provided by SJDH or its employees,
In Pamperin v. Trinity Memorial Hospital,103 questions were raised agents, or servants. By referring Dr. Casumpang to care and treat for
on "what acts by the hospital or its agent are sufficient to lead a Edmer, SJDH impliedly held out Dr. Casumpang, not only as an
reasonable person to conclude that the individual was an agent of the accredited member of Fortune Care, but also as a member of its
hospital." In ruling that the hospital’s manifestations can be proven medical staff. SJDH cannot now disclaim liability since there is no
without the express representation by the hospital, the court relied on showing that Mrs. Cortejo or the respondent knew, or should have
several cases from other jurisdictions, and held that: known, that Dr. Casumpang is only an independent contractor of the
hospital. In this case, estoppel has already set in.
(1) the hospital, by providing emergency room care and by
failing to advise patients that they were being treated by the We also stress that Mrs. Cortejo’s use of health care plan (Fortune
hospital’s agent and not its employee, has created the Care) did not affect SJDH’s liability. The only effect of the
appearance of agency; and availment of her Fortune Care card benefits is that her choice of
physician is limited only to physicians who are accredited with
(2) patients entering the hospital through the emergency Fortune Care. Thus, her use of health care plan in this case only
room, could properly assume that the treating doctors and limited the choice of doctors (or coverage of services, amount etc.)
staff of the hospital were acting on its behalf.1âwphi1 and not the liability of doctors or the hospital.

In this case, the court considered the act of the hospital of holding WHEREFORE, premises considered, this Court PARTLY GRANTS
itself out as provider of complete medical care, and considered the the consolidated petitions. The Court finds Dr. Noel Casumpang and
hospital to have impliedly created the appearance of authority. San Juan de Dios Hospital solidarily liable for negligent medical
practice. We SET ASIDE the finding of liability as to Dr. Ruby
b. Patient’s reliance Miranda-Sanga. The amounts of ₱45,000.00 as actual damages and
₱500,000.00 as moral damages should each earn legal interest at the
It involves an inquiry on whether the plaintiff acted in reliance on rate of six percent (6%) per annum computed from the date of the
the conduct of the hospital or its agent, consistent with ordinary care judgment of the trial court. The Court AFFIRMS the rest of the
and prudence.104 Decision dated October 29, 2004 and the Resolution dated January
12, 2006 in CA-G.R. CV No. 56400.
 P a g e | 67

SO ORDERED. the situation, Dr. Inso obtained the patient’s consent to the
laparotomy.
G.R. NO. 191018
At around 3:45 P.M., Lilian was brought to the operating room
CARLOS BORROMEO, PETITIONER, VS.FAMILY where Dr. Inso conducted the surgery. During the operation, Dr. Inso
confirmed that Lilian was suffering from acute appendicitis. He
CARE HOSPITAL, INC. AND RAMON S. INSO, M.D.,
proceeded to remove her appendix which was already infected and
RESPONDENTS. congested with pus.

BRION, J.:Carlos Borromeo lost his wife Lillian when she died The operation was successful. Lilian’s appearance and vital signs
after undergoing a routine appendectomy. The hospital and the improved. At around 7:30 P.M., Lilian was brought back to her
attending surgeon submit that Lillian bled to death due to a rare, life- private room from the recovery room.
threatening condition that prevented her blood from clotting
normally. Carlos believes, however, that the hospital and the surgeon
were simply negligent in the care of his late wife. At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian
was brought back to her room, Dr. Inso was informed that her blood
pressure was low. After assessing her condition, he ordered the
On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No. infusion of more intravenous (IV) fluids which somehow raised her
890961 dismissed Carlos' complaint and thus reversed the April 10, blood pressure.
2007 decision of the Regional Trial Court (RTC) in Civil Case No.
2000-603-MK2 which found the respondents liable for medical
negligence. Despite the late hour, Dr. Inso remained in the hospital to monitor
Lilian’s condition. Subsequently, a nurse informed him that Lilian
was becoming restless. Dr. Inso immediately went to Lilian and saw
The present petition for review on certiorari seeks to reverse the that she was quite pale. He immediately requested a blood
CA’s January 22, 2010 decision. transfusion.

ANTECEDENTS Lilian did not respond to the blood transfusion even after receiving
two 500 cc-units of blood. Various drugs, such as adrenaline or
The petitioner, Carlos Borromeo, was the husband of the late Lilian epinephrine, were administered.
V. Borromeo (Lilian). Lilian was a patient of the respondent Family
Care Hospital, Inc. (Family Care) under the care of respondent Dr. Eventually, an endotracheal tube connected to an oxygen tank was
Ramon Inso (Dr. Inso). inserted into Lilian to ensure her airway was clear and to compensate
for the lack of circulating oxygen in her body from the loss of red
On July 13, 1999, the petitioner brought his wife to the Family Care blood cells. Nevertheless, her condition continued to deteriorate.
Hospital because she had been complaining of acute pain at the
lower stomach area and fever for two days. She was admitted at the Dr. Inso observed that Lilian was developing petechiae in various
hospital and placed under the care of Dr. Inso. parts of her body. Petechiae are small bruises caused by bleeding
under the skin whose presence indicates a blood-coagulation
Dr. Inso suspected that Lilian might be suffering from acute problem – a defect in the ability of blood to clot. At this point, Dr.
appendicitis. However, there was insufficient data to rule out other Inso suspected that Lilian had Disseminated Intravascular
possible causes and to proceed with an appendectomy. Thus, he Coagulation (DIC), a blood disorder characterized by bleeding in
ordered Lilian’s confinement for testing and evaluation. many parts of her body caused by the consumption or the loss of the
clotting factors in the blood. However, Dr. Inso did not have the
Over the next 48 hours, Lilian underwent multiple tests such as luxury to conduct further tests because the immediate need was to
complete blood count, urinalysis, stool exam, pelvic ultrasound, and resuscitate Lilian.
a pregnancy test. However, the tests were not conclusive enough to
confirm that she had appendicitis. Dr. Inso and the nurses performed cardiopulmonary resuscitation
(CPR) on Lilian. Dr. Inso also informed her family that there may be
Meanwhile, Lilian’s condition did not improve. She suffered from a need to re-operate on her, but she would have to be put in an
spiking fever and her abdominal pain worsened. The increasing Intensive Care Unit (ICU). Unfortunately, Family Care did not have
tenderness of her stomach, which was previously confined to her an ICU because it was only a secondary hospital and was not
lower right side, had also extended to her lower left side. Lilian required by the Department of Health to have one. Dr. Inso informed
abruptly developed an acute surgical abdomen. the petitioner that Lilian would have to be transferred to another
hospital.
On July 15, 1999, Dr. Inso decided to conduct an exploratory
laparotomy on Lilian because of the findings on her abdomen and At around 3:30 A.M., Dr. Inso personally called the Perpetual Help
his fear that she might have a ruptured appendix. Exploratory Medical Center to arrange Lilian’s transfer, but the latter had no
laparotomy is a surgical procedure involving a large incision on the available bed in its ICU. Dr. Inso then personally coordinated with
abdominal wall that would enable Dr. Inso to examine the abdominal the Muntinlupa Medical Center (MMC) which had an available bed.
cavity and identify the cause of Lilian’s symptoms. After explaining
 P a g e | 68

At around 4:00 A.M., Lilian was taken to the MMC by ambulance Moreover, Dr. Reyes admitted that he was not intelligently guided
accompanied by the resident doctor on duty and a nurse. Dr. Inso during the autopsy because he was not furnished with clinical,
followed closely behind in his own vehicle. physical, gross, histopath, and laboratory information that were
important for an accurate conclusion. Dr. Reyes also admitted that
Upon reaching the MMC, a medical team was on hand to resuscitate an appendical stump is initially swollen when sutured and that the
Lilian. A nasogastric tube (NGT) was inserted and IV fluids were stitches may loosen during the healing process when the initial
immediately administered to her. Dr. Inso asked for a plasma swelling subside.
expander. Unfortunately, at around 10:00 A.M., Lilian passed away
despite efforts to resuscitate her. In their defense, Dr. Inso and Family Care presented Dr. Inso, and
expert witnesses Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio
At the request of the petitioner, Lilian’s body was autopsied at the Hernandez (Dr. Hernandez).
Philippine National Police (PNP) Camp Crame Crime Laboratory.
Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the Dr. Ramos is a practicing pathologist with over 20 years of
laboratory, conducted the autopsy. Dr. Reyes summarized his experience. He is an associate professor at the Department of
notable findings as: Surgery of the Fatima Medical Center, the Manila Central
University, and the Perpetual Help Medical Center. He is a Fellow of
x x x I opened up the body and inside the abdominal cavity which the Philippine College of Surgeons, a Diplomate of the Philippine
you call peritoneal cavity there were 3,000 ml of clot and unclot Board of Surgery, and a Fellow of the Philippine Society of General
blood accumulated thereat. The peritoneal cavity was also free from Surgeons.
any adhesion. Then, I opened up the head and the brain revealed
paper white in color and the heart revealed abundant petechial Dr. Ramos discredited Dr. Reyes’ theory that the 0.5 x 0.5 cm
hemorrhages from the surface and it was normal. The valvular opening at the repair site caused Lilian’s internal bleeding.
leaflets were soft and pliable, and of course, the normal color is According to Dr. Ramos, appendical vessels measure only 0.1 to
reddish brown as noted. And the coronary arteries which supply the 0.15 cm, a claim that was not refuted by the petitioner. If the 0.5 x
heart were normal and unremarkable. Next, the lungs appears [sic] 0.5 cm opening had caused Lilian’s hemorrhage, she would not have
hemorrhagic. That was the right lung while the left lung was survived for over 16 hours; she would have died immediately, within
collapsed and paled. For the intestines, I noted throughout the entire 20 to 30 minutes, after surgery.
lengths of the small and large intestine were hemorrhagic areas.
Noted absent is the appendix at the ileo-colic area but there were Dr. Ramos submitted that the cause of Lilian’s death was
continuous suture repair done thereat. However, there was a 0.5 x hemorrhage due to DIC, a blood disorder that leads to the failure of
0.5 cm opening or left unrepaired at that time. There was an opening the blood to coagulate. Dr. Ramos considered the abundant petechial
on that repair site. Meaning it was not repaired. There were also at hemorrhage in the myocardic sections and the hemorrhagic right
that time clot and unclot blood found adherent thereon. The liver and lung; the multiple bleeding points indicate that Lilian was afflicted
the rest of the visceral organs were noted exhibit [sic] some degree with DIC.
of pallor but were otherwise normal. The stomach contains one
glassful about 400 to 500 ml.3 Meanwhile, Dr. Hernandez is a general surgeon and a hospital
administrator who had been practicing surgery for twenty years as of
Dr. Reyes concluded that the cause of Lilian’s death was the date of his testimony.
hemorrhage due to bleeding petechial blood vessels: internal
bleeding. He further concluded that the internal bleeding was caused Dr. Hernandez testified that Lilian’s death could not be attributed to
by the 0.5 x 0.5 cm opening in the repair site. He opined that the the alleged wrong suturing. He submitted that the presence of blood
bleeding could have been avoided if the site was repaired with in the lungs, in the stomach, and in the entire length of the bowels
double suturing instead of the single continuous suture repair that he cannot be reconciled with Dr. Reyes’ theory that the hemorrhage
found. resulted from a single-sutured appendix.

Based on the autopsy, the petitioner filed a complaint for damages Dr. Hernandez testified that Lilian had uncontrollable bleeding in the
against Family Care and against Dr. Inso for medical negligence. microcirculation as a result of DIC. In DIC, blood oozes from very
small blood vessels because of a problem in the clotting factors of
During the trial, the petitioner presented Dr. Reyes as his expert the blood vessels. The microcirculation is too small to be seen by the
witness. Dr. Reyes testified as to his findings during the autopsy and naked eye; the red cell is even smaller than the tip of a needle.
his opinion that Lilian’s death could have been avoided if Dr. Inso Therefore, the alleged wrong suturing could not have caused the
had repaired the site with double suture rather than a single suture. amount of hemorrhaging that caused Lilian’s death.

However, Dr. Reyes admitted that he had very little experience in Dr. Hernandez further testified that the procedure that Dr. Inso
the field of pathology and his only experience was an on-the-job performed was consistent with the usual surgical procedure and he
training at the V. Luna Hospital where he was only on observer would not have done anything differently.4
status. He further admitted that he had no experience in appendicitis
or appendectomy and that Lilian’s case was his first autopsy The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a
involving a death from appendectomy. rebuttal witness. Dr. Avila, also a lawyer, was presented as an expert
in medical jurisprudence. Dr. Avila testified that between Dr. Reyes
 P a g e | 69

who autopsied the patient and Dr. Ramos whose findings were based not guarantors of care and cannot be held liable for the death of their
on medical records, greater weight should be given to Dr. Reyes’ patients when they exercised diligence and did everything to save
testimony. the patient.

On April 10, 2007, the RTC rendered its decision awarding the OUR RULING
petitioner P88,077.50 as compensatory damages; P50,000.00 as
death indemnity; P3,607,910.30 as loss of earnings; P50,000.00 as The petition involves factual questions.
moral damages; P30,000.00 as exemplary damages; P50,000.00 as
attorney’s fees, and the costs of the suit. Under Section 1 of Rule 45, a petition for review on certiorari shall
only raise questions of law. The Supreme Court is not a trier of facts
The RTC relied on Dr. Avila’s opinion and gave more weight to Dr. and it is not our function to analyze and weigh evidence that the
Reyes’ findings regarding the cause of Lilian’s death. It held that Dr. lower courts had already passed upon.
Inso was negligent in using a single suture on the repair site causing
Lilian’s death by internal hemorrhage. It applied the doctrine of res The factual findings of the Court of Appeals are, as a general rule,
ipsa loquitur, holding that a patient’s death does not ordinarily occur conclusive upon this Court. However, jurisprudence has also carved
during an appendectomy. out recognized exceptions 5 to this rule, to wit: (1) when the findings
are grounded entirely on speculation, surmises, or conjectures;6 (2)
The respondents elevated the case to the CA and the appeal was when the inference made is manifestly mistaken, absurd, or
docketed as CA-G.R. CV No. 89096. impossible;7 (3) when there is grave abuse of discretion;8 (4) when
the judgment is based on a misapprehension of facts;9 (5) when the
On January 22, 2010, the CA reversed the RTC’s decision and findings of facts are conflicting;10 (6) when in making its findings
dismissed the complaint. The CA gave greater weight to the the Court of Appeals went beyond the issues of the case, or its
testimonies of Dr. Hernandez and Dr. Ramos over the findings of findings are contrary to the admissions of both the appellant and the
Dr. Reyes because the latter was not an expert in pathology, appellee;11 (7) when the findings are contrary to those of the
appendectomy, nor in surgery. It disregarded Dr. Avila’s opinion trial court’s;12 (8) when the findings are conclusions without
because the basic premise of his testimony was that the doctor who citation of specific evidence on which they are based;13 (9) when
conducted the autopsy is a pathologist of equal or of greater the facts set forth in the petition as well as in the petitioner’s main
expertise than Dr. Ramos or Dr. Hernandez. and reply briefs are not disputed by the respondent;14 (10) when the
findings of fact are premised on the supposed absence of evidence
The CA held that there was no causal connection between the and contradicted by the evidence on record;15 and (11) when the
alleged omission of Dr. Inso to use a double suture and the cause of Court of Appeals manifestly overlooked certain relevant facts not
Lilian’s death. It also found that Dr. Inso did, in fact, use a double disputed by the parties, which, if properly considered, would justify
suture ligation with a third silk reinforcement ligation on the repair a different conclusion.16
site which, as Dr. Reyes admitted on cross-examination, loosened up
after the initial swelling of the stump subsided. Considering that the CA’s findings with respect to the cause of
Lilian’s death contradict those of the RTC, this case falls under one
The CA denied the applicability of the doctrine of res ipsa loquitur of the exceptions. The Court will thus give due course to the petition
because the element of causation between the instrumentality under to dispel any perception that we denied the petitioner justice.
the control and management of Dr. Inso and the injury that caused
Lilian’s death was absent; the respondents sufficiently established The requisites of establishing medical malpractice
that the cause of Lilian’s death was DIC.
Whoever alleges a fact has the burden of proving it. This is a basic
On March 18, 2010, the petitioner filed the present petition for legal principle that equally applies to civil and criminal cases. In a
review on certiorari. medical malpractice case, the plaintiff has the duty of proving its
elements, namely: (1) a duty of the defendant to his patient; (2) the
THE PETITION defendant’s breach of this duty; (3) injury to the patient; and (4)
proximate causation between the breach and the injury suffered.17
The petitioner argues: (1) that Dr. Inso and Family Care were In civil cases, the plaintiff must prove these elements by a
negligent in caring for Lilian before, during, and after her preponderance of evidence.
appendectomy and were responsible for her death; and (2) that the
doctrine of res ipsa loquitur is applicable to this case. A medical professional has the duty to observe the standard of care
and exercise the degree of skill, knowledge, and training ordinarily
In their Comment, the respondents counter: (1) that the issues raised expected of other similarly trained medical professionals acting
by the petitioner are not pure questions of law; (2) that they under the same circumstances.18 A breach of the accepted standard
exercised utmost care and diligence in the treatment of Lilian; (3) of care constitutes negligence or malpractice and renders the
that Dr. Inso did not deviate from the standard of care observed defendant liable for the resulting injury to his patient.19
under similar circumstances by other members of the profession in
good standing; (4) that res ipsa loquitur is not applicable because The standard is based on the norm observed by other reasonably
direct evidence as to the cause of Lilian’s death and the competent members of the profession practicing the same field of
presence/absence of negligence is available; and (5) that doctors are medicine.20 Because medical malpractice cases are often highly
 P a g e | 70

technical, expert testimony is usually essential to establish: (1) the traumatic autopsies does not necessarily make him an expert in
standard of care that the defendant was bound to observe under the clinical and pathological autopsies or in surgery.
circumstances; (2) that the defendant’s conduct fell below the
acceptable standard; and (3) that the defendant’s failure to observe Moreover, Dr. Reyes’ cross-examination reveals that he was less
the industry standard caused injury to his patient.21 than candid about his qualifications during his initial testimony:

The expert witness must be a similarly trained and experienced Atty. Castro: Dr. Reyes, you mentioned during your direct testimony
physician. Thus, a pulmonologist is not qualified to testify as to the last March 5, 2002 that you graduated in March of 1994, is that
standard of care required of an anesthesiologist22 and an autopsy correct?
expert is not qualified to testify as a specialist in infectious
diseases.23 Witness: Yes, sir.

The petitioner failed to present an expert witness. Atty. Castro: You were asked by Atty. Fajardo, the counsel for the
plaintiff, when did you finish your medical works, and you answered
In ruling against the respondents, the RTC relied on the findings of the following year of your graduation which was in 1994?
Dr. Reyes in the light of Dr. Avila’s opinion that the former’s
testimony should be given greater weight than the findings of Dr. Witness: Not in 1994, it was in 1984, sir.
Ramos and Dr. Hernandez. On the other hand, the CA did not
consider Dr. Reyes or Dr. Avila as expert witnesses and disregarded
their testimonies in favor of Dr. Ramos and Dr. Hernandez. The Atty. Castro: And after you graduated Mr. Witness, were there
basic issue, therefore, is whose testimonies should carry greater further study that you undergo after graduation? [sic]
weight?
Witness: It was during my service only at the police organization
We join and affirm the ruling of the CA. that I was given the chance to attend the training, one year course.

Other than their conclusion on the culpability of the respondents, the Atty. Castro: Did you call that what you call a post graduate
CA and the RTC have similar factual findings. The RTC ruled internship?
against the respondents based primarily on the following testimony
of Dr. Reyes. Witness: Residency.

Witness: Well, if I remember right during my residency in my Atty. Castro: Since you call that a post graduate, you were not
extensive training, during the operation of the appendix, your undergo post graduate? [sic]
Honor, it should really be sutured twice which we call double.
Witness: I did.
Court: What would be the result if there is only single?
Atty. Castro: Where did you undergo a post graduate internship?
Witness: We cannot guarranty [sic] the bleeding of the sutured blood
vessels, your Honor. Witness: Before I took the board examination in the year 1984, sir.

Court: So, the bleeding of the patient was caused by the single Atty. Castro: That was where?
suture?
Witness: MCU Hospital, sir.
Witness: It is possible.24
Atty. Castro: After the post graduate internship that was the time you
Dr. Reyes testified that he graduated from the Manila Central took the board examination?
University (MCU) College of Medicine and passed the medical
board exams in 1994.25 He established his personal practice at his Witness: Yes, sir.
house clinic before being accepted as an on-the-job trainee in the
Department of Pathology at the V. Luna Hospital in 1994. In January
Atty. Castro: And I supposed that you did it for the first take?
1996, he joined the PNP Medico-Legal Division and was assigned to
the Crime Laboratory in Camp Crame. He currently heads the
Southern Police District Medico-Legal division.26 His primary Witness: Yes, sir.
duties are to examine victims of violent crimes and to conduct
traumatic autopsies to determine the cause of death. Atty. Castro: Are you sure of that?

After having conducted over a thousand traumatic autopsies, Dr. Witness: Yes, sir.
Reyes can be considered an expert in traumatic autopsies or
autopsies involving violent deaths. However, his expertise in Atty. Castro: After you took the board examination, did you pursue
any study?
 P a g e | 71

Witness: During that time, no sir. Witness: No, sir.

Atty. Castro: You also testified during the last hearing that "page 6 Atty. Castro: This is not in anyway related to appendicitis?
of March 5, 2002, answer of the witness: then I was accepted as on
the job training at the V. Luna Hospital at the Department of Witness: No, sir.27
Pathologist in 1994", could you explain briefly all of this Mr.
witness? Atty. Reyes appears to have inflated his qualifications during his
direct testimony. First, his "extensive training during [his] residency"
Witness: I was given an order that I could attend the training only as was neither extensive actual training, nor part of medical residency.
a civilian not as a member of the AFP because at that time they were His assignment to the V. Luna Hospital was not as an on-the-job
already in the process of discharging civilian from undergoing trainee but as a mere observer. This assignment was also before he
training. was actually licensed as a doctor. Dr. Reyes also loosely used the
terms "residence" and "residency" – terms that carry a technical
Atty. Castro: So in the Department of Pathology, what were you meaning with respect to medical practice –during his initial
assigned to? testimony28 to refer to (1) his physical place of dwelling and (2) his
internship before taking the medical board exams. This misled the
Witness: Only as an observer status. trial court into believing that he was more qualified to give his
opinion on the matter than he actually was.
Atty. Castro: So you only observed.
Perhaps nothing is more telling about Dr. Reyes’ lack of expertise in
Witness: Yes, sir. the subject matter than the petitioner’s counsel’s own admission
during Dr. Reyes’ cross examination.
Atty. Castro: And on the same date during your direct testimony on
March 5, 2002, part of which reads "well if I remember right during Atty. Castro: How long were you assigned to observe with the
my residency in my extensive training during the operation of the Department of Pathology?
appendix," what do you mean by that Mr. witness?
Witness: Only 6 months, sir.
Witness: I was referring to my internship, sir.
Atty. Castro: During your studies in the medical school, Mr.
Atty. Castro: So this is not a residency training? Witness, do you recall attending or having participated or [sic] what
you call motivity mortality complex?
Witness: No, sir.
Atty. Fajardo: Your honor, what is the materiality?
Atty. Castro: This is not a specialty training?
Atty. Castro: That is according to his background, your honor. This
is a procedure which could more or less measure his knowledge in
Witness: No, sir. autopsy proceedings when he was in medical school and compared
to what he is actually doing now.
Atty. Castro: This was the time the year before you took the board
examination? Atty. Fajardo: The witness is not an expert witness, your honor.

Witness: That’s right, sir. Yes, sir. Atty. Castro: He is being presented as an expert witness, your
honor.29
Atty. Castro: You were not then a license[d] doctor?
When Atty. Castro attempted to probe Dr. Reyes about his
Witness: No, sir. knowledge on the subject of medical or pathological autopsies, Dr.
Fajardo objected on the ground that Dr. Reyes was not an expert in
Atty. Castro: And you also mentioned during the last hearing shown the field. His testimony was offered to prove that Dr. Inso was
by page 8 of the same transcript of the stenographic notes, dated negligent during the surgery without necessarily offering him as an
March 5, 2002 and I quote "and that is your residence assignment?", expert witness.
and you answered "yes, sir." What was the meaning of your answer?
What do you mean when you say yes, sir? Atty. Fajardo: x x x The purpose of this witness is to establish that
there was negligence on the surgical operation of the appendix or in
xxxx the conduct of the appendectomy by the defendant doctor on the
deceased Lilian Villaran Borromeo.30
Witness: Okay, I stayed at the barracks of the Southern Police
District Fort Bonifacio. Dr. Reyes is not an expert witness who could prove Dr. Inso’s
alleged negligence. His testimony could not have established the
Atty. Castro: So this is not referring to any kind of training? standard of care that Dr. Inso was expected to observe nor assessed
 P a g e | 72

Dr. Inso’s failure to observe this standard. His testimony cannot be died from bleeding of the appendical vessel. They identified Lilian’s
relied upon to determine if Dr. Inso committed errors during the cause of death as massive blood loss resulting from DIC.
operation, the severity of these errors, their impact on Lilian’s
probability of survival, and the existence of other diseases/conditions To our mind, the testimonies of expert witnesses Dr. Hernandez and
that might or might not have caused or contributed to Lilian’s death. Dr. Ramos carry far greater weight than that of Dr. Reyes. The
petitioner’s failure to present expert witnesses resulted in his failure
The testimony of Dr. Avila also has no probative value in to prove the respondents’ negligence. The preponderance of
determining whether Dr. Inso was at fault. Dr. Avila testified in his evidence clearly tilts in favor of the respondents.
capacity as an expert in medical jurisprudence, not as an expert in
medicine, surgery, or pathology. His testimony fails to shed any light Res ipsa loquitur is not applicable when the failure to observe
on the actual cause of Lilian’s death. due care is not immediately apparent to the layman.

On the other hand, the respondents presented testimonies from Dr. The petitioner cannot invoke the doctrine of res ipsa loquitur to shift
Inso himself and from two expert witnesses in pathology and the burden of evidence onto the respondent. Res ipsa loquitur,
surgery. literally, "the thing speaks for itself;" is a rule of evidence that
presumes negligence from the very nature of the accident itself using
Dr. Ramos graduated from the Far Eastern University, Nicanor common human knowledge or experience.
Reyes Medical Foundation, in 1975. He took up his post-graduate
internship at the Quezon Memorial Hospital in Lucena City, before The application of this rule requires: (1) that the accident was of a
taking the board exams. After obtaining his professional license, he kind which does not ordinarily occur unless someone is negligent;
underwent residency training in pathology at the Jose R. Reyes (2) that the instrumentality or agency which caused the injury was
Memorial Center from 1977 to 1980. He passed the examination in under the exclusive control of the person charged with negligence;
Anatomic, Clinical, and Physical Pathology in 1980 and was and (3) that the injury suffered must not have been due to any
inducted in 1981. He also took the examination in anatomic voluntary action or contribution from the injured person.38 The
pathology in 1981 and was inducted in 1982.31 concurrence of these elements creates a presumption of negligence
that, if unrebutted, overcomes the plaintiff’s burden of proof.
At the time of his testimony, Dr. Ramos was an associate professor
in pathology at the Perpetual Help Medical School in Biñan, Laguna, This doctrine is used in conjunction with the doctrine of common
and at the De La Salle University in Dasmariñas, Cavite. He was the knowledge. We have applied this doctrine in the following cases
head of the Batangas General Hospital Teaching and Training involving medical practitioners:
Hospital where he also headed the Pathology Department. He also
headed the Perpetual Help General Hospital Pathology a. Where a patient who was scheduled for a
department.32 cholecystectomy (removal of gall stones) but was otherwise
healthy suffered irreparable brain damage after being
Meanwhile, Dr. Hernandez at that time was a General Surgeon with administered anesthesia prior to the operation.39
27 years of experience as a General Practitioner and 20 years of
experience as a General Surgeon.1âwphi1 He obtained his medical b. Where after giving birth, a woman woke up with a
degree from the University of Santo Tomas before undergoing five gaping burn wound close to her left armpit;40
years of residency training as a surgeon at the Veterans Memorial
Center hospital. He was certified as a surgeon in 1985. He also holds
a master’s degree in Hospital Administration from the Ateneo de c. The removal of the wrong body part during the operation;
Manila University.33 and

He was a practicing surgeon at the: St. Luke’s Medical Center, d. Where an operating surgeon left a foreign object (i.e.,
Fatima Medical Center, Unciano Medical Center in Antipolo, rubber gloves) inside the body of the patient.41
Manila East Medical Center of Taytay, and Perpetual Help Medical
Center in Biñan.34 He was also an associate professor at the The rule is not applicable in cases such as the present one where the
Department of Surgery at the Fatima Medical Center, the Manila defendant’s alleged failure to observe due care is not immediately
Central University, and the Perpetual Help Medical Center. He also apparent to a layman.42 These instances require expert opinion to
chaired the Department of Surgery at the Fatima Medical Center.35 establish the culpability of the defendant doctor. It is also not
applicable to cases where the actual cause of the injury had been
Dr. Hernandez is a Fellow of the American College of Surgeons, the identified or established.43
Philippine College of Surgeons, and the Philippine Society of
General Surgeons. He is a Diplomate of the Philippine Board of While this Court sympathizes with the petitioner’s loss, the
Surgery and a member of the Philippine Medical Association and the petitioner failed to present sufficient convincing evidence to
Antipolo City Medical Society.36 establish: (1) the standard of care expected of the respondent and (2)
the fact that Dr. Inso fell short of this expected standard. Considering
Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual further that the respondents established that the cause of Lilian’s
surgical procedure.37 Both experts agreed that Lilian could not have uncontrollable bleeding (and, ultimately, her death) was a medical
disorder – Disseminated Intravascular Coagulation – we find no
reversible errors in the CA’s dismissal of the complaint on appeal.
 P a g e | 73

WHEREFORE, we hereby DENY the petition for lack of merit. No Cebu amounting to P140,000, as well as for the P50,000 that Rosit
costs. would have to spend for the removal of the plate and screws that Dr.
Pangan installed. Dr. Gestuvo refused to pay.8
SO ORDERED.
Thus, Rosit filed a civil case for damages and attorney's fees with
G.R. NO. 210445, DECEMBER 07, 2015 the RTC against Dr. Gestuvo and DDH, the suit docketed as Civil
Case No. 27,354-99.
NILO B. ROSIT, PETITIONER, V. DAVAO DOCTORS The Ruling of the Regional Trial Court
HOSPITAL AND DR. ROLANDO G. GESTUVO,
RESPONDENT.VELASCO JR., J.:THE CASE The RTC freed DDH from liability on the ground that it exercised
the proper diligence in the selection and supervision of Dr. Gestuvo,
but adjudged Dr. Gestuvo negligent and ruled, thus:
This is a petition filed under Rule 45 of the Rules of Court assailing FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to
the Decision and Resolution dated January 22, 20131 and November have preponderantly established his cause of action in the complaint
7, 2013,2 respectively, of the Court of Appeals, Cagayan De Oro against defendant Dr. Rolando G. Gestuvo only, judgment is hereby
City (CA), in CA-G.R. CV No. 00911-MIN. The CA Decision rendered for the plaintiff and against said defendant, ordering the
reversed the Decision dated September 14, 20043 of the Regional defendant DR. ROLANDO G. GESTUVO to pay unto plaintiff
Trial Court, Branch 33 in Davao City-(RTC) in Civil Case No. NILO B. ROSIT the following:chanRoblesvirtualLawlibrary
27,354-99, a suit for damages thereat which Nilo B. Rosit (Rosit)
commenced against Dr. Rolando Gestuvo (Dr. Gestuvo).
a) the sum of ONE HUNDRED FORTY THOUSAND ONE
HUNDRED NINETY NINE PESOS and 13/100
Factual Antecedents
(P140,199.13) representing reimbursement of actual expenses
incurred by plaintiff in the operation and re-operation of his
On January 15, 1999, Rosit figured in a motorcycle accident. The X-
mandible;
ray soon taken the next day at the Davao Doctors Hospital (DDH)
showed that he fractured his jaw. Rosit was then referred to Dr. b) the sum of TWENTY NINE THOUSAND AND SIXTY
Gestuvo, a specialist in mandibular injuries,4 who, on January 19, EIGHT PESOS (P29,068.00) representing reimbursement of
1999, operated on Rosit. the filing fees and appearance fees;
c) the sum of ONE HUNDRED FIFTY THOUSAND PESOS
During the operation, Dr. Gestuvo used a metal plate fastened to the
(P150,000.00) as and for attorney's fees;
jaw with metal screws to immobilize the mandible. As the operation
required the smallest screws available, Dr. Gestuvo cut the screws d) the amount of FIFTY THOUSAND PESOS (P50,000.00) as
on hand to make them smaller. Dr. Gestuvo knew that there were moral damages;
smaller titanium screws available in Manila, but did not so inform
Rosit supposing that the latter would not be able to afford the same. 5 e) the amount of TEN THOUSAND PESOS (P10,000.00) as
exemplary damages; and
Following the procedure, Rosit could not properly open and close his
mouth and was in pain. X-rays done on Rosit two (2) days after the f) the costs of the suit.
operation showed that the fracture in his jaw was aligned but the
screws used on him touched his molar. Given the X-ray results, Dr. For lack of merit, the complaint against defendant DAVAO
Gestuvo referred Rosit to a dentist. The dentist who checked Rosit, DOCTORS HOSPITAL and the defendants' counterclaims are
Dr. Pangan, opined that another operation is necessary and that it is hereby ordered DISMISSED.
to be performed in Cebu.6
Cost against Dr. Rolando G. Gestuvo.
Alleging that the dentist told him that the operation conducted on his
mandible was improperly done, Rosit went back to Dr. Gestuvo to SO ORDERED.
demand a loan to defray the cost of the additional operation as well In so ruling, the trial court applied the res ipsa loquitur principle
as the expenses of the trip to Cebu. Dr. Gestuvo gave Rosit P4,500. holding that "the need for expert, medical testimony may be
dispensed with because the injury itself provides the proof of
Rosit went to Cebu on February 19, 1999, still suffering from pain negligence."
and could hardly open his mouth.
Therefrom, both parties appealed to the CA.
In Cebu, Dr. Pangan removed the plate and screws thus installed by
Dr. Gestuvo and replaced them with smaller titanium plate and The Ruling of the Court of Appeals
screws. Dr. Pangan also extracted Rosit's molar that was hit with a
screw and some bone fragments. Three days after the operation, In its January 22, 2013 Decision, the CA modified the appealed
Rosit was able to eat and speak well and could open and close his judgment by deleting the awards made by the trial court, disposing
7
mouth normally. as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The
On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse Decision dated September 14, 2004 of the Regional Trial Court,
him for the cost of the operation and the expenses he incurred in Branch 33, Davao City, rendered in Civil Case No. 27,354-99 is
 P a g e | 74

hereby MODIFIED. The monetary awards adjudged in favor of Nilo Although generally, expert medical testimony is relied upon in
B. Rosit are hereby DELETED for lack of basis. malpractice suits to prove that a physician has done a negligent
act or that he has deviated from the standard medical
SO ORDERED. procedure, when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is dispensed
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is
with because the injury itself provides the proof of negligence.
not applicable and that the testimony of an expert witness is
The reason is that the general rule on the necessity of expert
necessary for a finding of negligence. The appellate court also gave
testimony applies only to such matters clearly within the domain of
credence to Dr. Pangan's letter stating the opinion that Dr. Gestuvo
medical science, and not to matters that are within the common
did not commit gross negligence in his emergency management of
knowledge of mankind which may be testified to by anyone familiar
Rosit's fractured mandible.
with the facts. x x x
Rosit's motion for reconsideration was denied in the CA's November
Thus, courts of other jurisdictions have applied the doctrine in the
7, 2013 Resolution.
following situations: leaving of a foreign object in the body of the
patient after an operation, injuries sustained on a healthy part of the
Hence, the instant appeal.
body which was not under, or in the area, of treatment, removal of
the wrong part of the body when another part was intended,
The Issue
knocking out a tooth while a patient's jaw was under anesthetic for
the removal of his tonsils, and loss of an eye while the patient
The ultimate issue for our resolution is whether the appellate court
plaintiff was under the influence of anesthetic, during or following
correctly absolved Dr. Gestuvo from liability.
an operation for appendicitis, among others.
The Court's Ruling We have further held that resort to the doctrine of res ipsa loquitur
as an exception to the requirement of an expert testimony in medical
The petition is impressed with merit. negligence cases may be availed of if the following essential
requisites are satisfied: (1) the accident was of a kind that does not
In Flores v. Pineda,9 the Court explained the concept of a medical ordinarily occur unless someone is negligent; (2) the instrumentality
negligence case and the elements required for its prosecution, or agency that caused the injury was under the exclusive control of
viz:chanRoblesvirtualLawlibrary the person charged; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the person injured.12
A medical negligence case is a type of claim to redress a wrong
committed by a medical professional, that has caused bodily harm to In its assailed Decision, the CA refused to acknowledge the
or the death of a patient. There are four elements involved in a application of the res ipsa loquitur doctrine on the ground that the
medical negligence case, namely: duty, breach, injury, and foregoing elements are absent. In particular, the appellate court is of
proximate causation. the position that post-operative pain is not unusual after surgery and
that there is no proof that the molar Dr. Pangan removed is the same
Duty refers to the standard of behavior which imposes restrictions on molar that was hit by the screw installed by Dr. Gestuvo in Rosit's
one's conduct. The standard in turn refers to the amount of mandible. Further, a second operation was conducted within the 5-
competence associated with the proper discharge of the profession. week usual healing period of the mandibular fracture so that the
A physician is expected to use at least the same level of care that any second element cannot be considered present. Lastly, the CA pointed
other reasonably competent doctor would use under the same out that the X-ray examination conducted on Rosit prior to his first
circumstances. Breach of duty occurs when the physician fails to surgery suggests that he had "chronic inflammatory lung disease
comply with these professional standards. If injury results to the compatible," implying that the injury may have been due to Rosit's
patient as a result of this breach, the physician is answerable for peculiar condition, thus effectively negating the presence of the third
negligence. (Emphasis supplied) element.13

After careful consideration, this Court cannot accede to the CA's

An expert witness is not necessary as the res ipsa loquitur findings as it is at once apparent from the records that the essential
doctrine is applicable requisites for the application of the doctrine of res ipsa loquitur are
present.
To establish medical negligence, this Court has held that an expert
testimony is generally required to define the standard of behavior by The first element was sufficiently established when Rosit proved that
which the court may determine whether the physician has properly one of the screws installed by Dr. Gestuvo struck his molar. It was
performed the requisite duty toward the patient. This is so for this issue that Dr. Gestuvo himself referred Rosit to Dr. Pangan.
considering that the requisite degree of skill and care in the treatment In fact, the affidavit of Dr. Pangan presented by Dr. Gestuvo himself
of a patient is usually a matter of expert opinion.10 before the trial court narrated that the same molar struck with the
screw installed by Dr. Gestuvo was examined and eventually
Solidum v. People of the Philippines11 provides an exception. There, operated on by Dr. Pangan. Dr. Gestuvo cannot now go back and say
the Court explained that where the application of the principle of res that Dr. Pangan treated a molar different from that which was
ipsa loquitur is warranted, an expert testimony may be dispensed affected by the first operation.
with in medical negligence cases:
Clearly, had Dr. Gestuvo used the proper size and length of screws
 P a g e | 75

and placed the same in the proper locations, these would not have Witness No, your Honor.
struck Rosit's teeth causing him pain and requiring him to undergo a
corrective surgery. xxxx
Witness The reason I did not inform him anymore Judge because
Dr. Gestuvo knew that the screws he used on Rosit were too large as, what I thought he was already hard up with the down
in fact, he cut the same with a saw.14 He also stated during trial that payment. And if I will further introduce him this screws,
common sense dictated that the smallest screws available should be the more he will not be able to afford the operation.
used. More importantly, he also knew that these screws were
available locally at the time of the operation.15 Yet, he did not avail xxxx
of such items and went ahead with the larger screws and merely Court This titanium screws and plates were available then it is
sawed them off. Even assuming that the screws were already at the up to Rosit to decide whether to use it or not because
proper length after Dr. Gestuvo cut the same, it is apparent that he after all the material you are using is paid by the patient
negligently placed one of the screws in the wrong area thereby himscll, is it not?
striking one of Rosit's teeth.
Witness Yes, that is true.
In any event, whether the screw hit Rosit's molar because it was too Li v. Soliman17 made the following disquisition on the relevant
long or improperly placed, both facts are the product of Dr. Doctrine of Informed Consent in relation to medical negligence
Gestuvo's negligence. An average man of common intelligence cases, to wit:
would know that striking a tooth with any foreign object much less a The doctrine of informed consent within the context of physician-
screw would cause severe pain. Thus, the first essential requisite is patient relationships goes far back into English common law. x x x
present in this case. From a purely ethical norm, informed consent evolved into a
general principle of law that a physician has a duty to disclose
Anent the second element for the res ipsa loquitur doctrine what a reasonably prudent physician in the medical community
application, it is sufficient that the operation which resulted in the in the exercise of reasonable care would disclose to his patient as
screw hitting Rosit's molar was, indeed, performed by Dr. Gestuvo. to whatever grave risks of injury might be incurred from a
No other doctor caused such fact. proposed course of treatment, so that a patient, exercising
ordinary care for his own welfare, and faced with a choice of
The CA finds that Rosit is guilty of contributory negligence in undergoing the proposed treatment, or alternative treatment, or
having Dr. Pangan operate on him during the healing period of his none at all, may intelligently exercise his judgment by
fractured mandible. What the CA overlooked is that it was Dr. reasonably balancing the probable risks against the probable
Gestuvo himself who referred Rosit to Dr. Pangan. Nevertheless, Dr. benefits.
Pangan's participation could not have contributed to the reality that
the screw that Dr. Gestuvo installed hit Rosit's molar. xxxx

Lastly, the third element that the injury suffered must not have been There are four essential elements a plaintiff must prove in a
due to any voluntary action or contribution of the person injured was malpractice action based upon the doctrine of informed consent:
satisfied in this case. It was not shown that Rosit's lung disease could "(1) the physician had a duty to disclose material risks; (2) he
have contributed to the pain. What is clear is that he suffered failed to disclose or inadequately disclosed those risks; (3) as a
because one of the screws that Dr. Gestuvo installed hit Rosit's direct and proximate result of the failure to disclose, the patient
molar. consented to treatment she otherwise would not have consented
to; and (4) plaintiff was injured by the proposed treatment." The
Clearly then, the res ipsa loquitur doctrine finds application in the gravamen in an informed consent case requires the plaintiff to "point
instant case and no expert testimony is required to establish the to significant undisclosed information relating to the treatment
negligence of defendant Dr. Gestuvo. which would have altered her decision to undergo it." (Emphasis
supplied)
Petitioner was deprived of the opportunity to make an
The four adverted essential elements above are present here.
"informed consent"
First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the
What is more damning for Dr. Gestuvo is his failure to inform Rosit
risks of using the larger screws for the operation. This was his
that such smaller screws were available in Manila, albeit at a higher
obligation as the physician undertaking the operation.
price.16 As testified to by Dr. Gestuvo himself:
Court This titanium materials according to you were already Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding
Alright. available in the Philippines since the time of Rosit's by himself that Rosit could not afford to get the more expensive
accident? titanium screws.
Witness Yes, your Honor.
Third, had Rosit been informed that there was a risk that the larger
xxxx screws are not appropriate for the operation and that an additional
Court Did you inform Rosit about the existence of titanium operation replacing the screws might be required to replace the
screws and plates which according to you is the screws same, as what happened in this case, Rosit would not have agreed to
and plates of choice? the operation. It bears pointing out that Rosit was, in fact, able to
afford the use of the smaller titanium screws that were later used by
 P a g e | 76

Dr. Pangan to replace the screws that were used by Dr. Gestuvo. incurred due to the negligence of Dr. Gestuvo. In Mendoza v.
Spouses Gomez,21 the Court explained that a claimant is entitled to
Fourth, as a result of using the larger screws, Rosit experienced pain actual damages when the damage he sustained is the natural and
and could not heal properly because one of the screws hit his molar. probable consequences of the negligent act and he adequately proved
This was evident from the fact that just three (3) days after Dr. the amount of such damage.
Pangan repeated the operation conducted by Dr. Gestuvo, Rosit was
pain-free and could already speak. This is compared to the one (1) Rosit is also entitled to moral damages as provided under Article
month that Rosit suffered pain and could not use his mouth after the 2217 of the Civil Code,22 given the unnecessary physical suffering
operation conducted by Dr. Gestuvo until the operation of Dr. he endured as a consequence of defendant's negligence.
Pangan.
To recall, from the time he was negligently operated upon by Dr.
Without a doubt, Dr. Gestuvo is guilty of withholding material Gestuvo until three (3) days from the corrective surgery performed
information which would have been vital in the decision of Rosit in by Dr. Pangan, or for a period of one (1) month, Rosit suffered pain
going through with the operation with the materials at hand. Thus, and could not properly use his jaw to speak or eat.
Dr. Gestuvo is also guilty of negligence on this ground.
The trial court also properly awarded attorney's fees and costs of suit
Dr. Pangan's Affidavit is not admissible under Article 2208 of the Civil Code,23 since Rosit was compelled to
litigate due to Dr. Gestuvo's refusal to pay for Rosit's damages.
The appellate court's Decision absolving Dr. Gestuvo of negligence
was also anchored on a letter signed by Dr. Pangan who stated the As to the award of exemplary damages, the same too has to be
opinion that Dr. Gestuvo did not commit gross negligence in his affirmed. In Mendoza,24 the Court enumerated the requisites for the
emergency management of Mr. Rosit's fractured mandible.18 Clearly, award of exemplary damages:
the appellate court overlooked the elementary principle against Our jurisprudence sets certain conditions when exemplary damages
hearsay evidence. may be awarded: First, they may be imposed by way of example or
correction only in addition, among others, to compensatory damages,
In Dantis v. Maghinang, Jr.,19 the Court reiterated the oft-repeated and cannot be recovered as a matter of right, their determination
rule that "an affidavit is merely hearsay evidence where its depending upon the amount of compensatory damages that may be
affiant/maker did not take the witness stand." Here, Dr. Pangan awarded to the claimant. Second, the claimant must first establish his
never took the witness stand to affirm the contents of his affidavit. right to moral, temperate, liquidated or compensatory damages.
Thus, the affidavit is inadmissible and cannot be given any weight. Third, the wrongful act must be accompanied by bad faith, and the
The CA, therefore, erred when it considered the affidavit of Dr. award would be allowed only if the guilty party acted in a wanton,
Pangan, mpreso for considering the same as expert testimony. fraudulent, reckless, oppressive or malevolent manner.
The three (3) requisites are met. Dr. Gestuvo's actions are clearly
Moreover, even if such affidavit is considered as admissible and the negligent. Likewise, Dr. Gestuvo acted in bad faith or in a wanton,
testimony of an expert witness, the Court is not bound by such fraudulent, reckless, oppressive manner when he was in breach of
testimony. As ruled in Ilao-Quianay v. Mapile:20 the doctrine of informed consent. Dr. Gestuvo had the duty to fully
Indeed, courts are not bound by expert testimonies. They may place explain to Rosit the risks of using large screws for the operation.
whatever weight they choose upon such testimonies in accordance More importantly, he concealed the correct medical procedure of
with the facts of the case. The relative weight and sufficiency of using the smaller titanium screws mainly because of his erroneous
expert testimony is peculiarly within the province of the trial court to belief that Rosit cannot afford to buy the expensive titanium screws.
decide, considering the ability and character of the witness, his Such concealment is clearly a valid basis for an award of exemplary
actions upon the witness stand, the weight and process of the damages.
reasoning by which he has supported his opinion, his possible bias in
favor of the side for whom he testifies, and any other matters which WHEREFORE, the instant petition is GRANTED. The CA
serve to illuminate his statements. The opinion of an expert should Decision dated January 22, 2013 and Resolution dated November 7,
be considered by the court in view of all the facts and circumstances 2013 in CA-G.R. CV No. 00911-MIN are hereby REVERSED and
of the case. The problem of the evaluation of expert testimony is left SET ASIDE. Further, the Decision dated September 14, 2004 of the
to the discretion of the trial court whose ruling thereupon is not Regional Trial Court, Branch 33 in Davao City in Civil Case No.
revicwable in the absence of an abuse of that discretion. 27,345-99 is hereby REINSTATED and AFFIRMED.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of
negligence or not will not bind the Court. The Court must weigh and SO ORDERED.
examine such testimony and decide for itself the merits thereof.
chanroblesvirtuallawlibrary

As discussed above, Dr. Gestuvo's negligence is clearly G.R. No. 178485

demonstrable by the doctrines of res ipsa loquitur and informed
consent. September 4, 2009PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,
Damages vs.MARIANO SAPIGAO, JR., Accused-Appellant.
For the foregoing, the trial court properly awarded Rosit actual
QUISUMBING, J.:
damages after he was able to prove the actual expenses that he
 P a g e | 77

For automatic review is the Decision1 dated July 19, 2006 of the Ballistician and Chief of the Firearms and Explosives Unit of the
Court of Appeals, in CA-G.R. CR No. 01018, affirming with National Bureau of Investigation (NBI) Rogelio Munar, and NBI
modification the Decision2 dated July 28, 1999 of the Regional Trial Medico-Legal Officer Dr. Arturo Llavore.
Court (RTC) of Urdaneta City, Branch 46, in Criminal Case No. U-
5035, finding appellant Mariano Sapigao, Jr. guilty beyond The autopsy of the victim was conducted by Dr. Irenio G. Agapito,
reasonable doubt of the crime of murder. Rural Health Physician of Asingan, Pangasinan. The autopsy report
states the following findings on the victim:
The facts of the case, culled from the records, are as follows:
EXTERNAL:
In an Information3 dated January 4, 1989, appellant Mariano
Sapigao, Jr. and Melvin Sublingo, who remains at large, were Fairly developed, fairly nourished, adult male, weighing around 130
accused of the crime of murder with the use of unlicensed firearms, lbs., height – 5[’] 4"; Lon[g] black hair, brown complexion and
as follows: wearing maong long pants, green t-shirt, white brief[s] soaked with
blood.
That on or about the 22nd day of September 1987, in the afternoon,
at Barangay Carosucan Sur, municipality of Asingan, province of INTERNAL:
Pangasinan, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then armed with Cal. .45 and GUNSHOT WOUNDS
Cal. .38 Handguns, conspiring, confederating and mutually helping
each other, with deliberate intent to kill, and with treachery and
evident premeditation, did then and there wilfully, unlawfully and 1. 3/4 cm. Pt. of entrance passing between the 8th and 9th thorasaic
feloniously, attack, assault and shoot one Alexander Turalba, vertebrae lacerating the right ventricle of the heart and the bullet was
inflicting upon him, the following injuries: Gunshot wound – 3/4 lodged between the 6th left and right ribs, at the sternum.
cm. pt. of entrance passing between the 8th and 9th thorasaic
vertebrae, lacerating the right ventricle of the heart [bullet lodged BLOOD AT THORACIC CAVITY 500 c.c.
between the 6th left and right ribs, at the sternum]; Gunshot wound –
3/4 pt. of entrance, left parietal bone, traversing the brain with 1 inch 2. 3/4 pt. of entrance – left parietal bone traversing the brain with 1
ill-defined edges pt. of exit, fracturing the right maxillary bone, inch ill-defined edges of pt[.] of exit fracturing the right maxillary
which caused the death of said Alexander Turalba, as a consequence, bone.
to the damage and prejudice of his heirs.
CAUSE OF DEATH: Fatal gunshot wounds.15
CONTRARY to Art. 248, Revised Penal Code.
Prosecution witness Cecilio Fabro claimed that on September 22,
A Warrant of Arrest4 was issued against appellant and Sublingo on 1987, at about 3 p.m., he was with the victim Alexander Turalba at
October 12, 1987, but the two allegedly eluded arrest. An Alias the basketball court located at Carosucan Sur in front of the health
Warrant of Arrest5 was issued on December 1, 1987. Another center of the school, forming a team to play basketball. While they
Warrant of Arrest6 was issued on January 18, 1989 by the RTC of were in the process of forming the team, Melvin Sublingo arrived
Urdaneta, Pangasinan, Branch 46. and immediately shot Alexander Turalba once at the back with a .38
caliber firearm. Turalba fell, face down. Melvin Sublingo fired once
7
Appellant was arrested on February 8, 1993. His lawyer filed a more, hitting Henry Osias. Then appellant Mariano Sapigao, Jr., shot
petition for bail8 which was opposed by the government prosecutor.9 Alexander Turalba with a .45 caliber firearm while the latter was
The RTC, acting on the opposition of the government prosecutor, lying down. After the shooting, Sublingo ran towards the eastern
increased the bail bond from ₱30,000.00 to ₱50,000.00.10 Thereafter, direction while appellant ran towards the western direction. After
the government prosecutor, Atty. Monte P. Ignacio, filed a motion Sublingo and appellant left, Fabro lifted Turalba, placed the latter in
for consolidation11 of the case which had been docketed as Criminal a jeep and brought him to the Urdaneta Sacred Heart Hospital where
Case No. U-5035 with another criminal case docketed as Criminal he was declared dead on arrival.16
Case No. U-4963 for illegal possession of firearms against the
appellant and Sublingo arising out of the same incident. The motion For the defense, Jesus Ballesteros, a resident of Carosucan Sur,
was unacted upon and when called for arraignment, appellant was Asingan, Pangasinan, testified that on September 22, 1987, at about
absent and out on bail.12 Warrants of arrest were again issued against 3 p.m., he was with the appellant, who was his cousin, and several
him and he was finally arrested on January 27, 1999. During his other cousins near a basketball court at Carosucan Sur. Suddenly,
arraignment on February 9, 1999, appellant pleaded not guilty.13 Melvin Sublingo appeared. Sublingo at first tried to shoot Cecilio
Previously, the RTC, on March 18, 1993, consolidated Criminal Fabro but a cousin of Fabro, Orlan Fabro, shouted "You run,
Case No. U-5035 with Criminal Case No. U-4963 for illegal Manong, because Melvin is there already." Cecilio ran towards the
possession of firearms against the same accused. 14 south. Alexander Turalba, who was at the midcourt, was then shot
by Melvin Sublingo with a .38 caliber firearm. Appellant was beside
The prosecution presented the testimonies of Dr. Leonardo Guerrero, Ballesteros at the time Sublingo shot Turalba twice hitting the back
Cecilio Fabro, SPO4 Rodrigo Escaño, and Apolonia Turalba, the and head of Turalba. Sublingo shot the head of Turalba first. When
victim’s grandmother. For its part, the defense presented the Turalba fell down, he was shot again at the back by Sublingo.
testimonies of eyewitness Jesus Ballesteros, the appellant himself, Sublingo then ran towards the east where he met Osias. He also shot
Osias. Ballesteros denied that appellant shot Turalba. He attributed
 P a g e | 78

the shooting by Sublingo to revenge because Turalba mauled Turalba the following amounts: ₱50,000.00 as civil indemnity;
Sublingo in the morning of September 22, 1987 and while Sublingo ₱50,000.00 as moral damages; ₱25,000.00 as temperate damages
was being mauled by Alexander Turalba, Cecilio Fabro had poked a and ₱25,000.00 as exemplary damages.
knife at the head of Sublingo.17
SO ORDERED.23
Appellant denied shooting Alexander Turalba. He claimed that it
was Melvin Sublingo who shot Turalba twice, the first shot hitting Hence, this appeal where appellant raises the following issues in his
Turalba in the head and the second hitting Turalba at the back.18 Supplemental Brief:

NBI Ballistician Rogelio Munar testified that based on the gunshot I.

wounds of Turalba described in the autopsy report, the wound was
produced by a .32 or .38 caliber pistol.19 THE COURT OF APPEALS ERRED IN AFFIRMING THE
FINDING OF THE TRIAL COURT THAT APPELLANT SHOT
Dr. Arturo Llavore testified that after examining the autopsy report, THE VICTIM AND CAUSED HIS DEATH.
he concluded that the gunshot wounds were inflicted by a .38 caliber
firearm.20 II.

On July 28, 1999, the RTC rendered a decision finding appellant THE COURT OF APPEALS ERRED IN AFFIRMING THE
guilty beyond reasonable doubt of murder. It, however, dismissed FINDING OF THE TRIAL COURT THAT APPELLANT ACTED
the charges against him for illegal possession of firearms, IN CONSPIRACY WITH THE OTHER ACCUSED MELVIN
appreciating treachery as an aggravating circumstance in the crime SUBLINGO.
of murder. The dispositive portion of the RTC decision reads:
III.
WHEREFORE, JUDGMENT of CONVICTION beyond reasonable
doubt is rendered against MARIANO SAPIGAO, JR. of the crime of
aggravated Murder (appreciating treachery as qualifying THE COURT OF APPEALS ERRED IN NOT HOLDING THAT
circumstance) with the use of firearms and the Court sentences THE GUILT OF APPELLANT HAS NOT BEEN SHOWN
Mariano Sapigao, Jr. to suffer the penalty of Reclusion Perpetua; to BEYOND REASONABLE DOUBT.24
indemnify the heirs of the victim the sum of ₱38,600.00 as actual
damages; plus ₱50,000.00 as moral damages and ₱20,000.00 as The primordial issue is: Has appellant’s guilt for the crime of murder
exemplary damages. been proven beyond reasonable doubt?

Mariano Sapigao, Jr. is ACQUITTED in Crim. Case No. U-4963 Appellant, in his Supplemental Brief,25 argues the prosecution failed
(Illegal Possession of Firearm). to prove that he shot the victim because: (1) Prosecution witness
Cecilio Fabro testified that the handgun used by him in shooting the
The Branch Clerk of Court is hereby ordered to prepare the victim was a .45 caliber handgun, but the diameters at the point of
mittimus. entry of the two wounds sustained by the victim were that of wounds
caused by a .38 caliber firearm;26 (2) Fabro testified that he shot the
victim at the back while the Autopsy Report stated that the wounds
The Jail Warden, Bureau of Jail Management and Penology is of the victim were in the thoracic area and the left parietal area; 27 (3)
hereby ordered to deliver the person of Mariano Sapigao, Jr. to the The expert witnesses, Ballistician Munar and Dr. Llavore, are
National Bilibid Prisons, Muntinlupa City, [within] 15 days from impartial witnesses while Fabro had a motive to falsely testify
receipt of this Decision. against him;28 (4) The reliance by the Court of Appeals on the rule
that the trial court is in the best position to assess the credibility of
SO ORDERED.21 witnesses is not applicable in this case;29 (5) Ballistician Munar and
Dr. Llavore are expert and impartial witnesses and their testimonies
Appellant appealed before this Court. Pursuant to the decision in are based on physical evidence and scientific fact;30 (6) The other
People v. Mateo,22 the case was transferred to the Court of Appeals accused, Melvin Sublingo, caused both wounds of the victim;31 (7)
for intermediate review. The path of the bullet wound that caused the wound on the head of
the victim belies the testimony of Fabro that he shot the victim while
On July 19, 2006, the Court of Appeals affirmed with modification the latter was lying face down on the ground;32 (8) He had no motive
the trial court’s decision, as follows: to shoot the victim;33 (9) For more than ten years, the authorities did
not arrest him;34 (10) The burden of proof that he shot the victim
WHEREFORE, in view of the foregoing, the [D]ecision dated July with a .45 caliber handgun rests with the prosecution and he does not
28, 1999 of the Regional Trial Court of Urdaneta City, Branch 46, in have the burden to prove that he did not shoot the victim.35
Criminal Case No. U-5035 is AFFIRMED with modification.
Accused-appellant MARIANO SAPIGAO, JR. is found GUILTY The prosecution, through the Office of the Solicitor General, opted
beyond reasonable doubt of the crime of murder, qualified by not to file a supplemental brief, explaining that its arguments on the
treachery, and is hereby sentenced to suffer the penalty of reclusion issues invoked had already been discussed in the brief it had
perpetua, and ORDERED to pay the heirs of the victim Alexander previously filed.36
 P a g e | 79

After review, we uphold the ruling of the Court of Appeals affirming Q Why were you there at that precise time and date in that
the guilty verdict of the trial court. basketball court at Brgy. Caros[u]can Sur, Asingan,
Pangasinan?
Findings of facts of the trial court, its calibration of the testimonies
of witnesses, its assessment of their credibility and the probative A Because we are going to play basketball sir.
weight of their testimonies, as well as its conclusions anchored on
the said findings, are accorded by the appellate court high respect if Q Aside from you who are your companions or who are
not conclusive effect, unless the trial court ignored, misunderstood, present in that basketball court?
or misconstrued facts and circumstances of substance which, if
considered, would warrant a reversal of the outcome of the case.37 A Our [t]eammate and our barangaymate but Melvin
Sublingo arrived and [began shooting], sir.
In this case, the Court of Appeals and the RTC gave credence to the
testimony of prosecution witness Cecilio Fabro whose testimony Q Who are [those] present at the basketball court?
directly contradicts that of defense witness Jesus Ballesteros. We see
no reason to deviate from this finding.
A Melvin Sublingo, Mariano Sapigao, Jr. and our
teammate, sir.
It is well settled that the evaluation of the credibility of witnesses
and their testimonies is a matter best undertaken by the trial court
because of its unique opportunity to observe the witnesses firsthand Q How about Alexander T[u]ralba?
and to note their demeanor, conduct, and attitude under grilling
examination. These are important in determining the truthfulness of A He was there sir.
witnesses and in unearthing the truth, especially in the face of
conflicting testimonies.38 For, indeed, the emphasis, gesture, and Q While you [were] forming that basketball team in the
inflection of the voice are potent aids in ascertaining the witness’ afternoon of September 22, 1987, what happened Mr.
credibility, and the trial court has the opportunity and can take Witness?
advantage of these aids. These cannot be incorporated in the record
so that all that the appellate court can see are the cold words of the A Melvin Sublingo drew a gun and shot Alexander
witness contained in transcript of testimonies with the risk that some T[u]ralba sir.
of what the witness actually said may have been lost in the process
of transcribing. As correctly stated by an American court, "There is
Q How far were you then at that time when Melvin
an inherent impossibility of determining with any degree of accuracy
Sublingo [shot] Alexander T[u]ralba?
what credit is justly due to a witness from merely reading the words
spoken by him, even if there were no doubt as to the identity of the
words. However artful a corrupt witness may be, there is generally, A Three (3) meters sir.
under the pressure of a skillful cross-examination, something in his
manner or bearing on the stand that betrays him, and thereby Q [What] part of Alexander T[u]ralba’s body was hit?
destroys the force of his testimony. Many of the real tests of truth by
which the artful witness is exposed in the very nature of things A [The] heart sir.
cannot be transcribed upon the record, and hence they can never be
considered by the appellate court."39 Q Do you know what firearm was used by Melvin
Sublingo?
Cecilio Fabro testified:
A .38 Calibre sir.
Q Mr. Witness, at about 3:00 o’clock in the afternoon of
September 22, 1987, do you remember where you were? Q What happened to Alexander T[u]ralba when he was hit
with a .38 Calibre?
A Yes, sir.
A He died sir.
Q Where were you?
Q [After] Alexander T[u]ralba was hit, what happened
A We were at the basketball court, sir. to Alexander T[u]ralba?

Q Where is that basketball court? A He fell down on the ground, sir, facing down.

A In front of the Health Center of the school, sir. Q You mean when Alexander T[u]ralba fell down, his face
[was] facing down?
Q Where is that school?
A Yes sir.
A Caros[u]can Sur sir.
 P a g e | 80

Q How about Melvin Sublingo, what did he do when The RTC correctly ascertained that moved by common design and
Alexander T[u]ralba was shot? unity of purpose, Melvin Sublingo first shot Alexander Turalba at
the back, and as a result thereof, Turalba fell to the ground, face
A He again fired his gun, sir. down. While Turalba was lying face down, wounded, and in order to
ensure that Turalba was dead, the appellant fired at him once using a
Q Who fired that gun? .45 caliber firearm and hit Turalba’s head. The autopsy report
conformed with the testimony of Fabro. The RTC noted that Fabro is
credible since he narrated in details and without hesitation. It was
A Melvin Sublingo sir. not inclined to take seriously the defense’s assertion that Melvin
Sublingo alone, without the participation of the appellant, shot
Q Was Alexander T[u]ralba hit? Turalba, after finding that the testimony of Fabro is more credible
than the testimonies of Ballesteros and the appellant who are first
A No more because the place where he fired the gun is the cousins. We affirm this finding. Ballesteros’ testimony that Sublingo
place where he ran and Osias was hit, sir. first shot the victim on the head and then afterwards on the back
appears illogical since the first shot on the head already ensured the
Q You said the first time that Melvin Sublingo shot death of the victim. Fabro’s testimony that the victim was first shot
Alexander T[u]ralba, [the latter] fell down and was hit, on the back and then afterwards on the head to ensure his demise,
what did Melvin Sublingo do after that? appears more accurate.

A Melvin Sublingo ran sir. The Court of Appeals, after carefully and assiduously examining the
records of the case, supported the conclusion reached by the RTC. It
ruled that although the accused sought to denigrate the testimony of
Q To what direction did Melvin Sublingo run?
Fabro by alleging that they were previous rivals over the love of the
same woman, the defense failed to present compelling evidence to
A [Towards] the eastern direction sir. support the imputation of ill motive. It further ruled that although the
defense capitalized on the testimony of Dr. Leonardo Guerrero, who
Q When Melvin Sublingo ran and you saw Alexander testified on the possibility that only one kind of firearm was used
T[u]ralba [fall] down, what happened after that? since the wounds are of similar diameter, and the testimonies of NBI
Ballistics Expert Rogelio G. Munar and NBI Medico-Legal Officer
A I saw Mariano Sapigao, Jr. [shoot] Alexander Dr. Arturo G. Llavore to prove that the diameter of the gunshot
T[u]ralba while [the latter was] lying down facing the wounds sustained by the victim, which is 3/4 or .75 centimeter,
ground sir. could not have been produced by a .45 caliber pistol, the appellate
court held that the gun allegedly seen as held and used by the
Q You mean Mariano Sapigao, Jr. shot Alexander T[u]ralba appellant was never presented as evidence and no expert witness was
while the latter was lying down? able to physically examine the same. Hence, there was no way of
knowing the size of the wound it would have produced. The
appellate court also found that even the testimonies of the expert
A Yes sir.
witnesses of the defense were inconclusive. The NBI ballistics
expert, Munar, although admitting that he is not well versed on sizes
Q [What part of Alexander Turalba’s body] was hit of wounds, testified that the difference in size of gunshot wounds
when Mariano Sapigao, Jr. shot him? produced by .38 and .45 caliber guns is negligible. Dr. Llavore, the
NBI medico-legal expert, testified that the entrance of the wound
A Head sir. caused by a caliber .45 handgun is similar to that of a wound caused
by a .38 caliber handgun, except in the cross-diameter thereof where
Q How many times? the wound is smaller in case of a .38 caliber gun and larger in case of
a .45 caliber.
A Once only sir.
To put to rest the question of whether the .45 caliber handgun
Q How far were you [from] the accused Mariano Sapigao, allegedly used by the appellant in shooting the victim on the head
Jr. when the latter fired towards Alexander T[u]ralba? could produce an entrance wound with a 3/4 or .75 centimeter
diameter, we have held that the diameter of the entrance of gunshot
wounds could be smaller or larger, depending on certain factors. The
A Five (5) meters sir. factors which could make the wound of entrance bigger than the
caliber include: (1) shooting in contact or near fire; (2) deformity of
Q What kind of gun was used by Mariano Sapigao, Jr.? the bullet which entered; (3) a bullet which might have entered the
skin sidewise; and (4) an acute angular approach of the bullet.
A .45 Caliber sir. Where the wound of entrance is smaller than the firearm’s caliber,
the same may be attributed to the fragmentation of the bullet before
Q How do you know that it was .45 caliber? entering the skin or to a contraction of the elastic tissues of the
skin.41 Thus, it is not impossible for a .45 caliber handgun to produce
an entrance wound smaller than expected. The appellant’s defense of
A Because I can identify guns sir.40 (Emphasis supplied.)
denial therefore crumbles. In the face of the positive testimony of
 P a g e | 81

prosecution witness Fabro, as corroborated by the autopsy report, The award of P50,000.00 as moral damages is sustained, being
there is no doubt that appellant is guilty of the crime charged. Truly, consistent with recent cases. Moral damages are awarded without
what stands out from the evidence on record is the fact that to ensure further proof other than the death of the victim.1avvphi1
the death of the victim, the appellant shot him on the head while the
victim was already lying down. The victim’s heirs are likewise entitled to exemplary damages in the
amount of P25,000.00, given the presence of treachery which
In view of the foregoing, the Court is convinced that the prosecution qualified the killing to murder. Under Article 2230 of the Civil Code
has established by proof beyond reasonable doubt the criminal which allows the award of exemplary damages as part of the civil
culpability of the appellant.1avvphi1 liability when the crime was committed with one or more
aggravating circumstances, the term aggravating circumstance as
As for the penalty and civil liability, the Court of Appeals correctly used therein should be construed in its generic sense since it did not
held: specify otherwise.42

Under Article 248 of the Revised Penal Code, the essential elements WHEREFORE, the assailed Decision dated July 19, 2006 of the
of murder are: (1) a person was killed; (2) the accused killed him; (3) Court of Appeals in CA-G.R. CR No. 01018 affirming with
the killing was attended by any of the qualifying circumstances modification the judgment of conviction of the Regional Trial Court
mentioned in Article 248; and (4) the killing is neither parricide nor of Urdaneta City, Branch 46 is AFFIRMED. Appellant Mariano
infanticide. All the elements of murder, as alleged in the Sapigao, Jr. is hereby found GUILTY of the crime of murder,
Information, have been sufficiently established by the prosecution in qualified by treachery, and sentenced to suffer the penalty of
the present case. reclusion perpetua with the accessory penalties provided for by law.
He is further ORDERED to pay the heirs of the victim Alexander
The offense in the present case was committed on September 22, Turalba ₱50,000 as civil indemnity, ₱50,000 as moral damages,
1987, prior to the enactment of Republic Act No. 7659 (The Death ₱25,000 as temperate damages, and ₱25,000 as exemplary
Penalty Law) on December 13, 1993. The applicable penalty for damages.SO ORDERED.
murder prior to the enactment of R.A. 7659 is reclusion temporal
maximum to death. There being no aggravating or mitigating G.R. No. 159132 December 18, 2008FE CAYAO-
circumstances, the penalty imposable on accused-appellant in LASAM, petitioner, vs.
accordance with Art. 64(1) of the Revised Penal Code should be the SPOUSES CLARO and EDITHA RAMOLETE,
medium period, which is, reclusion perpetua. The penalty of
reclusion perpetua being indivisible, the Indeterminate Sentence
respondents.*
Law does not apply.
AUSTRIA-MARTINEZ, J.:
Civil Liability
Before the Court is a Petition for Review on Certiorari under Rule
The trial court awarded the heirs of the victim Alexander Turalba the 45 of the Rules of Court filed 1by Dr. Fe Cayao-Lasam (petitioner)
sum of P38,600.00 as actual damages, P50,000.00 as moral damages seeking to annul the Decision dated July 4, 2003 of the Court of
Appeals (CA) in CA-G.R. SP No. 62206.
and P20,000.00 as exemplary damages.

The antecedent facts:

We delete the award of actual damages. To seek recovery of actual
damages, it is necessary to prove the actual amount of loss with
reasonable degree of certainty premised upon competent proof and On July 28, 1994, respondent, three months pregnant Editha
on the best evidence obtainable. Since the prosecution did not Ramolete (Editha) was brought to the Lorma Medical Center (LMC)
present receipts to prove the actual losses suffered, such actual in San Fernando, La Union due to vaginal bleeding. Upon advice of
damages cannot be awarded. petitioner relayed via telephone, Editha was admitted to the LMC on
the same day. A pelvic sonogram2 was then conducted on Editha
revealing the fetus’ weak cardiac pulsation.3 The following day,
However, while no actual damages may be awarded because no
Editha’s repeat pelvic sonogram4 showed that aside from the fetus’
competent evidence in the form of receipts was presented, temperate
weak cardiac pulsation, no fetal movement was also appreciated.
damages may be recovered under Article 2224 of the Civil Code as
Due to persistent and profuse vaginal bleeding, petitioner advised
the Court finds that some pecuniary loss has been suffered but its
Editha to undergo a Dilatation and Curettage Procedure (D&C) or
amount cannot be proved with certainty. Consistent with current
"raspa."
jurisprudence, the amount of P25,000.00 is awarded to the victim’s
heirs as temperate damages considering that it is not disputed that
the family incurred expenses for the wake and burial of the victim. On July 30, 1994, petitioner performed the D&C procedure. Editha
was discharged from the hospital the following day.
Consistent with prevailing jurisprudence, We award P50,000.00 by
way of indemnity ex delicto to the heirs of Alexander Turalba. When On September 16, 1994, Editha was once again brought at the LMC,
death occurs as a result of the crime, the heirs of the deceased are as she was suffering from vomiting and severe abdominal pains.
entitled to such amount as civil indemnity for death without need of Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo
any evidence or proof of damages. and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that
there was a dead fetus in the latter’s womb. After, Editha underwent
 P a g e | 82

laparotomy,5 she was found to have a massive intra-abdominal Based on the findings of the doctors who conducted the
hemorrhage and a ruptured uterus. Thus, Editha had to undergo a laparotomy on Editha, hers is a case of Ectopic Pregnancy
procedure for hysterectomy6 and as a result, she has no more chance Interstitial. This type of ectopic pregnancy is one that is
to bear a child. being protected by the uterine muscles and manifestations
may take later than four (4) months and only attributes to
On November 7, 1994, Editha and her husband Claro Ramolete two percent (2%) of ectopic pregnancy cases.
(respondents) filed a Complaint7 for Gross Negligence and
Malpractice against petitioner before the Professional Regulations When complainant Editha was admitted at Lorma Medical
Commission (PRC). Center on July 28, 1994 due to vaginal bleeding, an ultra-
sound was performed upon her and the result of the
Respondents alleged that Editha’s hysterectomy was caused by Sonogram Test reveals a morbid fetus but did not specify
petitioner’s unmitigated negligence and professional incompetence where the fetus was located. Obstetricians will assume that
in conducting the D&C procedure and the petitioner’s failure to the pregnancy is within the uterus unless so specified by the
remove the fetus inside Editha’s womb.8 Among the alleged acts of Sonologist who conducted the ultra-sound. Respondent (Dr.
negligence were: first, petitioner’s failure to check up, visit or Lasam) cannot be faulted if she was not able to determine
administer medication on Editha during her first day of confinement that complainant Editha is having an ectopic pregnancy
at the LMC;9 second, petitioner recommended that a D&C procedure interstitial. The D&C conducted on Editha is necessary
be performed on Editha without conducting any internal examination considering that her cervix is already open and so as to stop
prior to the procedure;10 third, petitioner immediately suggested a the profuse bleeding. Simple curettage cannot remove a
D&C procedure instead of closely monitoring the state of pregnancy fetus if the patient is having an ectopic pregnancy, since
of Editha.11 ectopic pregnancy is pregnancy conceived outside the
uterus and curettage is done only within the uterus.
In her Answer,12 petitioner denied the allegations of negligence and Therefore, a more extensive operation needed in this case
incompetence with the following explanations: upon Editha’s of pregnancy in order to remove the fetus.15
confirmation that she would seek admission at the LMC, petitioner
immediately called the hospital to anticipate the arrival of Editha and Feeling aggrieved, respondents went to the PRC on appeal. On
ordered through the telephone the medicines Editha needed to take, November 22, 2000, the PRC rendered a Decision16 reversing the
which the nurses carried out; petitioner visited Editha on the findings of the Board and revoking petitioner’s authority or license
morning of July 28, 1994 during her rounds; on July 29, 1994, she to practice her profession as a physician.17
performed an internal examination on Editha and she discovered that
the latter’s cervix was already open, thus, petitioner discussed the Petitioner brought the matter to the CA in a Petition for Review
possible D&C procedure, should the bleeding become more profuse; under Rule 43 of the Rules of Court. Petitioner also dubbed her
on July 30 1994, she conducted another internal examination on petition as one for certiorari18 under Rule 65 of the Rules of Court.
Editha, which revealed that the latter’s cervix was still open; Editha
persistently complained of her vaginal bleeding and her passing out In the Decision dated July 4, 2003, the CA held that the Petition for
of some meaty mass in the process of urination and bowel Review under Rule 43 of the Rules of Court was an improper
movement; thus, petitioner advised Editha to undergo D&C remedy, as the enumeration of the quasi-judicial agencies in Rule 43
procedure which the respondents consented to; petitioner was very is exclusive.19 PRC is not among the quasi-judicial bodies whose
vocal in the operating room about not being able to see an abortus;13 judgment or final orders are subject of a petition for review to the
taking the words of Editha to mean that she was passing out some CA, thus, the petition for review of the PRC Decision, filed at the
meaty mass and clotted blood, she assumed that the abortus must CA, was improper. The CA further held that should the petition be
have been expelled in the process of bleeding; it was Editha who treated as a petition for certiorari under Rule 65, the same would
insisted that she wanted to be discharged; petitioner agreed, but she still be dismissed for being improper and premature. Citing Section
advised Editha to return for check-up on August 5, 1994, which the 2620 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959,
latter failed to do. the CA held that the plain, speedy and adequate remedy under the
ordinary course of law which petitioner should have availed herself
Petitioner contended that it was Editha’s gross negligence and/or of was to appeal to the Office of the President.21
omission in insisting to be discharged on July 31, 1994 against
doctor’s advice and her unjustified failure to return for check-up as Hence, herein petition, assailing the decision of the CA on the
directed by petitioner that contributed to her life-threatening following grounds:
condition on September 16, 1994; that Editha’s hysterectomy was
brought about by her very abnormal pregnancy known as placenta 1. THE COURT OF APPEALS ERRED ON A
increta, which was an extremely rare and very unusual case of QUESTION OF LAW IN HOLDING THAT THE
abdominal placental implantation. Petitioner argued that whether or PROFESSIONAL REGULATION[S] COMMISSION
not a D&C procedure was done by her or any other doctor, there (PRC) WAS EXCLUDED AMONG THE QUASI-
would be no difference at all because at any stage of gestation before JUDICIAL AGENCIES CONTEMPLATED UNDER
term, the uterus would rupture just the same. RULE 43 OF THE RULES OF CIVIL PROCEDURE;

On March 4, 1999, the Board of Medicine (the Board) of the PRC 2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS
rendered a Decision,14 exonerating petitioner from the charges filed EXCLUDED FROM THE PURVIEW OF RULE 43 OF
against her. The Board held:
 P a g e | 83

THE RULES OF CIVIL PROCEDURE, THE Petitioner claims that the law does not allow complainants to appeal
PETITIONER WAS NOT PRECLUDED FROM FILING to the PRC from the decision of the Board. She invokes Article IV,
A PETITION FOR CERTIORARI WHERE THE Section 35 of the Rules and Regulations Governing the Regulation
DECISION WAS ALSO ISSUED IN EXCESS OF OR and Practice of Professionals, which provides:
WITHOUT JURISDICTION, OR WHERE THE
DECISION WAS A PATENT NULLITY; Sec. 35. The respondent may appeal the decision of the
Board within thirty days from receipt thereof to the
3. HEREIN RESPONDENTS-SPOUSES ARE NOT Commission whose decision shall be final. Complainant,
ALLOWED BY LAW TO APPEAL FROM THE when allowed by law, may interpose an appeal from the
DECISION OF THE BOARD OF MEDICINE TO THE Decision of the Board within the same period. (Emphasis
PROFESSIONAL REGULATION[S] COMMISSION; supplied)

4. THE COURT OF APPEALS COMMITTED GRAVE Petitioner asserts that a careful reading of the above law indicates
ABUSE OF DISCRETION IN DENYING FOR that while the respondent, as a matter of right, may appeal the
IMPROPER FORUM THE PETITION FOR Decision of the Board to the Commission, the complainant may
REVIEW/PETITION FOR CERTIORARI WITHOUT interpose an appeal from the decision of the Board only when so
GOING OVER THE MERITS OF THE GROUNDS allowed by law.23 Petitioner cited Section 26 of Republic Act No.
RELIED UPON BY THE PETITIONER; 2382 or "The Medical Act of 1959," to wit:

5. PRC’S GRAVE OMISSION TO AFFORD HEREIN Section 26. Appeal from judgment. The decision of the
PETITONER A CHANCE TO BE HEARD ON APPEAL Board of Medical Examiners (now Medical Board) shall
IS A CLEAR VIOLATION OF HER CONSTITUTIONAL automatically become final thirty days after the date of its
RIGHT TO DUE PROCESS AND HAS THE EFFECT OF promulgation unless the respondent, during the same
RENDERING THE JUDGMENT NULL AND VOID; period, has appealed to the Commissioner of Civil Service
(now Professional Regulations Commission) and later to
6. COROLLARY TO THE FOURTH ASSIGNED the Office of the President of the Philippines. If the final
ERROR, PRC COMMITTED GRAVE ABUSE OF decision is not satisfactory, the respondent may ask for a
DISCRETION, AMOUNTING TO LACK OF review of the case, or may file in court a petition for
JURISDICTION, IN ACCEPTING AND CONSIDERING certiorari.
THE MEMORANDUM ON APPEAL WITHOUT PROOF
OF SERVICE TO HEREIN PETITIONER, AND IN Petitioner posits that the reason why the Medical Act of 1959 allows
VIOLATION OF ART. IV, SEC. 35 OF THE RULES only the respondent in an administrative case to file an appeal with
AND REGULATIONS GOVERNING THE the Commission while the complainant is not allowed to do so is
REGULATION AND PRACTICE OF PROFESSIONALS; double jeopardy. Petitioner is of the belief that the revocation of
license to practice a profession is penal in nature.24
7. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN REVOKING PETITIONER’S LICENSE The Court does not agree.
TO PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO For one, the principle of double jeopardy finds no application in
THE CAUSE OF RESPONDENT EDITHAT [SIC] administrative cases. Double jeopardy attaches only: (1) upon a valid
RAMOLETE’S INJURY; indictment; (2) before a competent court; (3) after arraignment; (4)
when a valid plea has been entered; and (5) when the defendant was
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF acquitted or convicted, or the case was dismissed or otherwise
DISCRETION IN TOTALLY DISREGARDING THE terminated without the express consent of the accused.25 These
FINDING OF THE BOARD OF MEDICINE, WHICH elements were not present in the proceedings before the Board of
HAD THE NECESSARY COMPETENCE AND Medicine, as the proceedings involved in the instant case were
EXPERTISE TO ESTABLISH THE CAUSE OF administrative and not criminal in nature. The Court has already held
RESPONDENT EDITHA’S INJURY, AS WELL AS THE that double jeopardy does not lie in administrative cases.26
TESTIMONY OF THE EXPERT WITNESS AUGUSTO
MANALO, M.D. ;[and] Moreover, Section 35 of the Rules and Regulations Governing the
Regulation and Practice of Professionals cited by petitioner was
9. PRC COMMITTED GRAVE ABUSE OF subsequently amended to read:
DISCRETION IN MAKING CONCLUSIONS OF FACTS
THAT WERE NOT ONLY UNSUPPORTED BY Sec. 35. The complainant/respondent may appeal the
EVIDENCE BUT WERE ACTUALLY CONTRARY TO order, the resolution or the decision of the Board within
EVIDENCE ON RECORD.22 thirty (30) days from receipt thereof to the Commission
whose decision shall be final and executory. Interlocutory
The Court will first deal with the procedural issues. order shall not be appealable to the Commission. (Amended
by Res. 174, Series of 1990).27 (Emphasis supplied)
 P a g e | 84

Whatever doubt was created by the previous provision was settled Regulatory Board, National Telecommunications
with said amendment. It is axiomatic that the right to appeal is not a Commission, Department of Agrarian Reform under
natural right or a part of due process, but a mere statutory privilege Republic Act No. 6657, Government Service Insurance
that may be exercised only in the manner prescribed by law.28 In this System, Employees Compensation Commission,
case, the clear intent of the amendment is to render the right to Agricultural Inventions Board, Insurance Commission,
appeal from a decision of the Board available to both complainants Philippine Atomic Energy Commission, Board of
and respondents. Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law.
Such conclusion is bolstered by the fact that in 2006, the PRC issued (Emphasis supplied)
Resolution No. 06-342(A), or the New Rules of Procedure in
Administrative Investigations in the Professional Regulations Indeed, the PRC is not expressly mentioned as one of the agencies
Commission and the Professional Regulatory Boards, which which are expressly enumerated under Section 1, Rule 43 of the
provides for the method of appeal, to wit: Rules of Court. However, its absence from the enumeration does not,
by this fact alone, imply its exclusion from the coverage of said
Sec. 1. Appeal; Period Non-Extendible.- The decision, Rule.35 The Rule expressly provides that it should be applied to
order or resolution of the Board shall be final and executory appeals from awards, judgments final orders or resolutions of any
after the lapse of fifteen (15) days from receipt of the quasi-judicial agency in the exercise of its quasi-judicial functions.
decision, order or resolution without an appeal being The phrase "among these agencies" confirms that the enumeration
perfected or taken by either the respondent or the made in the Rule is not exclusive to the agencies therein listed.36
complainant. A party aggrieved by the decision, order or
resolution may file a notice of appeal from the decision, Specifically, the Court, in Yang v. Court of Appeals,37 ruled that
order or resolution of the Board to the Commission Batas Pambansa (B.P.) Blg. 12938 conferred upon the CA exclusive
within fifteen (15) days from receipt thereof, and serving appellate jurisdiction over appeals from decisions of the PRC. The
upon the adverse party a notice of appeal together with the Court held:
appellant’s brief or memorandum on appeal, and paying the
appeal and legal research fees. x x x29 The law has since been changed, however, at least in the
matter of the particular court to which appeals from the
The above-stated provision does not qualify whether only the Commission should be taken. On August 14, 1981, Batas
complainant or respondent may file an appeal; rather, the new rules Pambansa Bilang 129 became effective and in its Section
provide that "a party aggrieved" may file a notice of appeal. Thus, 29, conferred on the Court of Appeals "exclusive appellate
either the complainant or the respondent who has been aggrieved by jurisdiction over all final judgments, decisions, resolutions,
the decision, order or resolution of the Board may appeal to the orders or awards of Regional Trial Courts and quasi-
Commission. It is an elementary rule that when the law speaks in judicial agencies, instrumentalities, boards or commissions
clear and categorical language, there is no need, in the absence of except those falling under the appellate jurisdiction of the
legislative intent to the contrary, for any interpretation.30 Words and Supreme Court. x x x." In virtue of BP 129, appeals from
phrases used in the statute should be given their plain, ordinary, and the Professional Regulations Commission are now
common usage or meaning.31 exclusively cognizable by the Court of Appeals.39
(Emphasis supplied)
Petitioner also submits that appeals from the decisions of the PRC
should be with the CA, as Rule 4332 of the Rules of Court was Clearly, the enactment of B.P. Blg. 129, the precursor of the present
precisely formulated and adopted to provide for a uniform rule of Rules of Civil Procedure,40 lodged with the CA such jurisdiction
33
appellate procedure for quasi-judicial agencies. Petitioner further over the appeals of decisions made by the PRC.
contends that a quasi-judicial body is not excluded from the purview
of Rule 43 just because it is not mentioned therein.34 Anent the substantive merits of the case, petitioner questions the
PRC decision for being without an expert testimony to support its
On this point, the Court agrees with the petitioner. conclusion and to establish the cause of Editha’s injury. Petitioner
avers that in cases of medical malpractice, expert testimony is
Sec. 1, Rule 43 of the Rules of Court provides: necessary to support the conclusion as to the cause of the injury.41

Section 1. Scope. - This Rule shall apply to appeals from Medical malpractice is a particular form of negligence which
judgments or final orders of the Court of Tax Appeals, and consists in the failure of a physician or surgeon to apply to his
from awards, judgments, final orders or resolutions of practice of medicine that degree of care and skill which is ordinarily
or authorized by any quasi-judicial agency in the employed by the profession generally, under similar conditions, and
exercise of its quasi-judicial functions. Among these in like surrounding circumstances. 42 In order to successfully pursue
agencies are the Civil Service Commission, Central Board such a claim, a patient must prove that the physician or surgeon
of Assessment Appeals, Securities and Exchange either failed to do something which a reasonably prudent physician
Commission, Office of the President, Land Registration or surgeon would not have done, and that the failure or action caused
Authority, Social Security Commission, Civil Aeronautics injury to the patient.43
Board, Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration, Energy
 P a g e | 85

There are four elements involved in medical negligence cases: duty, conducted. Would you tell us whether there is any relation
breach, injury and proximate causation.44 at all of the D&C and the rupture in this particular instance?

A physician-patient relationship was created when Editha employed A:     I don’t think so for the two reasons that I have just
the services of the petitioner. As Editha’s physician, petitioner was mentioned- that it would not be possible for the
duty-bound to use at least the same level of care that any reasonably instrument to reach the site of pregnancy. And, No. 2, if
competent doctor would use to treat a condition under the same it is because of the D&C that rupture could have occurred
circumstances.45 The breach of these professional duties of skill and earlier.52 (Emphases supplied)
care, or their improper performance by a physician surgeon, whereby
the patient is injured in body or in health, constitutes actionable Clearly, from the testimony of the expert witness and the reasons
malpractice.46 As to this aspect of medical malpractice, the given by him, it is evident that the D&C procedure was not the
determination of the reasonable level of care and the breach thereof, proximate cause of the rupture of Editha’s uterus.
expert testimony is essential.47 Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the During his cross-examination, Dr. Manalo testified on how he would
light of scientific knowledge, it has been recognized that expert have addressed Editha’s condition should he be placed in a similar
testimony is usually necessary to support the conclusion as to circumstance as the petitioner. He stated:
causation.48
Atty. Ragonton:
In the present case, respondents did not present any expert testimony
to support their claim that petitioner failed to do something which a
reasonably prudent physician or surgeon would have done. Q:     Doctor, as a practicing OB-Gyne, when do you
consider that you have done a good, correct and ideal
dilatation and curettage procedure?
Petitioner, on the other hand, presented the testimony of Dr. Augusto
M. Manalo, who was clearly an expert on the subject.
A:     Well, if the patient recovers. If the patient gets well.
Because even after the procedure, even after the procedure
Generally, to qualify as an expert witness, one must have acquired you may feel that you have scraped everything, the patient
special knowledge of the subject matter about which he or she is to stops bleeding, she feels well, I think you should still have
testify, either by the study of recognized authorities on the subject or some reservations, and wait a little more time.
by practical experience.49
Q:     If you were the OB-Gyne who performed the
Dr. Manalo specializes in gynecology and obstetrics, authored and procedure on patient Editha Ramolete, would it be your
co-authored various publications on the subject, and is a professor at standard practice to check the fetal parts or fetal tissues that
the University of the Philippines.50 According to him, his diagnosis were allegedly removed?
of Editha’s case was "Ectopic Pregnancy Interstitial (also referred to
as Cornual), Ruptured."51 In stating that the D&C procedure was not
the proximate cause of the rupture of Editha’s uterus resulting in her A:     From what I have removed, yes. But in this particular
hysterectomy, Dr. Manalo testified as follows: case, I think it was assumed that it was part of the meaty
mass which was expelled at the time she was urinating and
flushed in the toilet. So there’s no way.
Atty. Hidalgo:
Q:     There was [sic] some portions of the fetal parts that
Q:     Doctor, we want to be clarified on this matter. The were removed?
complainant had testified here that the D&C was the
proximate cause of the rupture of the uterus. The condition
which she found herself in on the second admission. Will A:     No, it was described as scanty scraping if I remember
you please tell us whether that is true or not? it right–scanty.

A:     Yah, I do not think so for two reasons. One, as I Q:     And you would not mind checking those scant or
have said earlier, the instrument cannot reach the site of the those little parts that were removed?
pregnancy, for it to further push the pregnancy outside the
uterus. And, No. 2, I was thinking a while ago about A:     Well, the fact that it was described means, I
another reason- well, why I don’t think so, because it is the assume that it was checked, ‘no. It was described as
triggering factor for the rupture, it could have–the rupture scanty and the color also, I think was described. Because it
could have occurred much earlier, right after the D&C or a would be very unusual, even improbable that it would
few days after the D&C. not be examined, because when you scrape, the
specimens are right there before your eyes. It’s in front
Q:     In this particular case, doctor, the rupture occurred to of you. You can touch it. In fact, some of them will stick
have happened minutes prior to the hysterectomy or right to the instrument and therefore to peel it off from the
upon admission on September 15, 1994 which is about 1 ½ instrument, you have to touch them. So, automatically
months after the patient was discharged, after the D&C was they are examined closely.
 P a g e | 86

Q:     As a matter of fact, doctor, you also give telephone In the present case, the Court notes the findings of the Board of
orders to your patients through telephone? Medicine:

A:     Yes, yes, we do that, especially here in Manila When complainant was discharged on July 31, 1994, herein
because you know, sometimes a doctor can also be tied-up respondent advised her to return on August 4, 1994 or
somewhere and if you have to wait until he arrive at a four (4) days after the D&C. This advise was clear in
certain place before you give the order, then it would be a complainant’s Discharge Sheet. However, complainant
lot of time wasted. Because if you know your patient, if you failed to do so. This being the case, the chain of continuity
have handled your patient, some of the symptoms you can as required in order that the doctrine of proximate cause can
interpret that comes with practice. And, I see no reason for be validly invoked was interrupted. Had she returned, the
not allowing telephone orders unless it is the first time respondent could have examined her thoroughly.57 x x x
that you will be encountering the patient. That you have (Emphases supplied)
no idea what the problem is.
Also, in the testimony of Dr. Manalo, he stated further that assuming
Q:     But, doctor, do you discharge patients without seeing that there was in fact a misdiagnosis, the same would have been
them? rectified if Editha followed the petitioner’s order to return for a
check-up on August 4, 1994. Dr. Manalo stated:
A:     Sometimes yes, depending on how familiar I am with
the patient. We are on the question of telephone orders. I Granting that the obstetrician-gynecologist has been
am not saying that that is the idle [sic] thing to do, but I misled (justifiably) up to thus point that there would
think the reality of present day practice somehow have been ample opportunity to rectify the
justifies telephone orders. I have patients whom I have misdiagnosis, had the patient returned, as instructed for
justified and then all of a sudden, late in the afternoon or her follow-up evaluation. It was one and a half months
late in the evening, would suddenly call they have decided later that the patient sought consultation with another
that they will go home inasmuch as they anticipated that I doctor. The continued growth of an ectopic pregnancy,
will discharge them the following day. So, I just call and until its eventual rupture, is a dynamic process. Much
ask our resident on duty or the nurse to allow them to go change in physical findings could be expected in 1 ½
because I have seen that patient and I think I have full grasp months, including the emergence of suggestive ones.58
of her problems. So, that’s when I make this telephone
orders. And, of course before giving that order I ask about It is undisputed that Editha did not return for a follow-up evaluation,
how she feels.53 (Emphases supplied) in defiance of the petitioner’s advise. Editha omitted the diligence
required by the circumstances which could have avoided the injury.
From the foregoing testimony, it is clear that the D&C procedure The omission in not returning for a follow-up evaluation played a
was conducted in accordance with the standard practice, with the substantial part in bringing about Editha’s own injury. Had Editha
same level of care that any reasonably competent doctor would use returned, petitioner could have conducted the proper medical tests
to treat a condition under the same circumstances, and that there was and procedure necessary to determine Editha’s health condition and
nothing irregular in the way the petitioner dealt with Editha. applied the corresponding treatment which could have prevented the
rupture of Editha’s uterus. The D&C procedure having been
Medical malpractice, in our jurisdiction, is often brought as a civil conducted in accordance with the standard medical practice, it is
54
action for damages under Article 2176 of the Civil Code. The clear that Editha’s omission was the proximate cause of her own
defenses in an action for damages, provided for under Article 2179 injury and not merely a contributory negligence on her part.
of the Civil Code are:
Contributory negligence is the act or omission amounting to want of
Art. 2179. When the plaintiff’s own negligence was the ordinary care on the part of the person injured, which, concurring
immediate and proximate cause of his injury, he cannot with the defendant’s negligence, is the proximate cause of the
recover damages. But if his negligence was only injury.59 Difficulty seems to be apprehended in deciding which acts
contributory, the immediate and proximate cause of the of the injured party shall be considered immediate causes of the
injury being the defendant’s lack of due care, the plaintiff accident.60 Where the immediate cause of an accident resulting in an
may recover damages, but the courts shall mitigate the injury is the plaintiff’s own act, which contributed to the principal
damages to be awarded. occurrence as one of its determining factors, he cannot recover
damages for the injury.61 Again, based on the evidence presented
Proximate cause has been defined as that which, in natural and in the present case under review, in which no negligence can be
continuous sequence, unbroken by any efficient intervening cause, attributed to the petitioner, the immediate cause of the accident
produces injury, and without which the result would not have resulting in Editha’s injury was her own omission when she did
occurred.55 An injury or damage is proximately caused by an act or a not return for a follow-up check up, in defiance of petitioner’s
failure to act, whenever it appears from the evidence in the case that orders. The immediate cause of Editha’s injury was her own act;
the act or omission played a substantial part in bringing about or thus, she cannot recover damages from the injury.
actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of Lastly, petitioner asserts that her right to due process was violated
the act or omission.56 because she was never informed by either respondents or by the PRC
that an appeal was pending before the PRC.62 Petitioner claims that a
 P a g e | 87

verification with the records section of the PRC revealed that on The Hippocratic Oath mandates physicians to give primordial
April 15, 1999, respondents filed a Memorandum on Appeal before consideration to the health and welfare of their patients. If a doctor
the PRC, which did not attach the actual registry receipt but was fails to live up to this precept, he is made accountable for his acts. A
merely indicated therein.63 mistake, through gross negligence or incompetence or plain human
error, may spell the difference between life and death. In this sense,
Respondents, on the other hand avers that if the original registry the doctor plays God on his patient's fate. 1
receipt was not attached to the Memorandum on Appeal, PRC would
not have entertained the appeal or accepted such pleading for lack of In the case at bar, the Court is called upon to rule whether a surgeon,
notice or proof of service on the other party.64 Also, the registry an anesthesiologist and a hospital should be made liable for the
receipt could not be appended to the copy furnished to petitioner’s unfortunate comatose condition of a patient scheduled for
former counsel, because the registry receipt was already appended to cholecystectomy. 2
the original copy of the Memorandum of Appeal filed with PRC.65
Petitioners seek the reversal of the decision 3 of the Court of
It is a well-settled rule that when service of notice is an issue, the Appeals, dated 29 May 1995, which overturned the decision 4 of the
rule is that the person alleging that the notice was served must prove Regional Trial Court, dated 30 January 1992, finding private
the fact of service. The burden of proving notice rests upon the party respondents liable for damages arising from negligence in the
asserting its existence.66 In the present case, respondents did not performance of their professional duties towards petitioner Erlinda
present any proof that petitioner was served a copy of the Ramos resulting in her comatose condition.
Memorandum on Appeal. Thus, respondents were not able to satisfy
the burden of proving that they had in fact informed the petitioner of The antecedent facts as summarized by the trial court are reproduced
the appeal proceedings before the PRC. hereunder:

In EDI-Staffbuilders International, Inc. v. National Labor Relations Plaintiff Erlinda Ramos was, until the afternoon of
Commission,67 in which the National Labor Relations Commission June 17, 1985, a 47-year old (Exh. "A") robust
failed to order the private respondent to furnish the petitioner a copy woman (TSN, October 19, 1989, p. 10). Except for
of the Appeal Memorandum, the Court held that said failure occasional complaints of discomfort due to pains
deprived the petitioner of procedural due process guaranteed by the allegedly caused by the presence of a stone in her
Constitution, which could have served as basis for the nullification gall bladder (TSN, January 13, 1988, pp. 4-5), she
of the proceedings in the appeal. The same holds true in the case at was as normal as any other woman. Married to
bar. The Court finds that the failure of the respondents to furnish the Rogelio E. Ramos, an executive of Philippine
petitioner a copy of the Memorandum of Appeal submitted to the Long Distance Telephone Company, she has three
PRC constitutes a violation of due process. Thus, the proceedings children whose names are Rommel Ramos, Roy
before the PRC were null and void. Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).
All told, doctors are protected by a special rule of law. They are not
guarantors of care. They are not insurers against mishaps or unusual Because the discomforts somehow interfered with
consequences68 specially so if the patient herself did not exercise the her normal ways, she sought professional advice.
proper diligence required to avoid the injury. She was advised to undergo an operation for the
removal of a stone in her gall bladder (TSN,
WHEREFORE, the petition is GRANTED. The assailed Decision January 13, 1988, p. 5). She underwent a series of
of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 examinations which included blood and urine tests
is hereby REVERSED and SET ASIDE. The Decision of the Board (Exhs. "A" and "C") which indicated she was fit
of Medicine dated March 4, 1999 exonerating petitioner is for surgery.
AFFIRMED. No pronouncement as to costs.SO ORDERED.
Through the intercession of a mutual friend, Dr.
G.R. No. 124354 December 29, 1999 Buenviaje (TSN, January 13, 1988, p. 7), she and
her husband Rogelio met for the first time Dr.
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own Orlino Hozaka (should be Hosaka; see TSN,
behalf and as natural guardians of the minors, ROMMEL February 20, 1990, p. 3), one of the defendants in
RAMOS, ROY RODERICK RAMOS and RON RAYMOND this case, on June 10, 1985. They agreed that their
RAMOS, petitioners, date at the operating table at the DLSMC (another
vs. defendant), would be on June 17, 1985 at 9:00
COURT OF APPEALS, DELOS SANTOS MEDICAL A.M.. Dr. Hosaka decided that she should undergo
CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA a "cholecystectomy" operation after examining the
GUTIERREZ, respondents. documents (findings from the Capitol Medical
Center, FEU Hospital and DLSMC) presented to
  him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr.
Hosaka, in turn, assured Rogelio that he will get a
KAPUNAN, J.: good anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the
 P a g e | 88

anesthesiologist's fee and which was to be paid was also tired of waiting for Dr. Hosaka to arrive
after the operation (TSN, October 19, 1989, pp. (id., p. 21). While talking to Dr. Garcia at around
14-15, 22-23, 31-33; TSN, February 27, 1990, p. 12:10 P.M., he came to know that Dr. Hosaka
13; and TSN, November 9, 1989, pp. 3-4, 10, 17). arrived as a nurse remarked, "Nandiyan na si Dr.
Hosaka, dumating na raw." Upon hearing those
A day before the scheduled date of operation, she words, he went down to the lobby and waited for
was admitted at one of the rooms of the DLSMC, the operation to be completed (id., pp. 16, 29-30).
located along E. Rodriguez Avenue, Quezon City
(TSN, October 19,1989, p. 11). At about 12:15 P.M., Herminda Cruz, who was
inside the operating room with the patient, heard
At around 7:30 A.M. of June 17, 1985 and while somebody say that "Dr. Hosaka is already here."
still in her room, she was prepared for the She then saw people inside the operating room
operation by the hospital staff. Her sister-in-law, "moving, doing this and that, [and] preparing the
Herminda Cruz, who was the Dean of the College patient for the operation" (TSN, January 13, 1988,
of Nursing at the Capitol Medical Center, was also p. 16). As she held the hand of Erlinda Ramos, she
there for moral support. She reiterated her then saw Dr. Gutierrez intubating the hapless
previous request for Herminda to be with her even patient. She thereafter heard Dr. Gutierrez say,
during the operation. After praying, she was given "ang hirap ma-intubate nito, mali yata ang
injections. Her hands were held by Herminda as pagkakapasok. O lumalaki ang tiyan" (id., p. 17).
they went down from her room to the operating Because of the remarks of Dra. Gutierrez, she
room (TSN, January 13, 1988, pp. 9-11). Her focused her attention on what Dr. Gutierrez was
husband, Rogelio, was also with her (TSN, doing. She thereafter noticed bluish discoloration
October 19, 1989, p. 18). At the operating room, of the nailbeds of the left hand of the hapless
Herminda saw about two or three nurses and Dr. Erlinda even as Dr. Hosaka approached her. She
Perfecta Gutierrez, the other defendant, who was then heard Dr. Hosaka issue an order for someone
to administer anesthesia. Although not a member to call Dr. Calderon, another anesthesiologist (id.,
of the hospital staff, Herminda introduced herself p. 19). After Dr. Calderon arrived at the operating
as Dean of the College of Nursing at the Capitol room, she saw this anesthesiologist trying to
Medical Center who was to provide moral support intubate the patient. The patient's nailbed became
to the patient, to them. Herminda was allowed to bluish and the patient was placed in a
stay inside the operating room. trendelenburg position — a position where the
head of the patient is placed in a position lower
At around 9:30 A.M., Dr. Gutierrez reached a than her feet which is an indication that there is a
nearby phone to look for Dr. Hosaka who was not decrease of blood supply to the patient's brain (Id.,
yet in (TSN, January 13, 1988, pp. 11-12). Dr. pp. 19-20). Immediately thereafter, she went out of
Gutierrez thereafter informed Herminda Cruz the operating room, and she told Rogelio E. Ramos
about the prospect of a delay in the arrival of Dr. "that something wrong was . . . happening" (Ibid.).
Hosaka. Herminda then went back to the patient Dr. Calderon was then able to intubate the patient
who asked, "Mindy, wala pa ba ang Doctor"? The (TSN, July 25, 1991, p. 9).
former replied, "Huwag kang mag-alaala, darating
na iyon" (Ibid.). Meanwhile, Rogelio, who was outside the
operating room, saw a respiratory machine being
Thereafter, Herminda went out of the operating rushed towards the door of the operating room. He
room and informed the patient's husband, Rogelio, also saw several doctors rushing towards the
that the doctor was not yet around (id., p. 13). operating room. When informed by Herminda
When she returned to the operating room, the Cruz that something wrong was happening, he told
patient told her, "Mindy, inip na inip na ako, ikuha her (Herminda) to be back with the patient inside
mo ako ng ibang Doctor." So, she went out again the operating room (TSN, October 19, 1989, pp.
and told Rogelio about what the patient said (id., 25-28).
p. 15). Thereafter, she returned to the operating
room. Herminda Cruz immediately rushed back, and saw
that the patient was still in trendelenburg position
At around 10:00 A.M., Rogelio E. Ramos was (TSN, January 13, 1988, p. 20). At almost 3:00
"already dying [and] waiting for the arrival of the P.M. of that fateful day, she saw the patient taken
doctor" even as he did his best to find somebody to the Intensive Care Unit (ICU).
who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19- About two days thereafter, Rogelio E. Ramos was
20). He also thought of the feeling of his wife, able to talk to Dr. Hosaka. The latter informed the
who was inside the operating room waiting for the former that something went wrong during the
doctor to arrive (ibid.). At almost 12:00 noon, he intubation. Reacting to what was told to him,
met Dr. Garcia who remarked that he (Dr. Garcia) Rogelio reminded the doctor that the condition of
 P a g e | 89

his wife would not have happened, had he (Dr. defendants were guilty of, at the very least,
Hosaka) looked for a good anesthesiologist (TSN, negligence in the performance of their duty to
October 19, 1989, p. 31). plaintiff-patient Erlinda Ramos.

Doctors Gutierrez and Hosaka were also asked by On the part of Dr. Perfecta Gutierrez, this Court
the hospital to explain what happened to the finds that she omitted to exercise reasonable care
patient. The doctors explained that the patient had in not only intubating the patient, but also in not
bronchospasm (TSN, November 15, 1990, pp. 26- repeating the administration of atropine (TSN,
27). August 20, 1991, pp. 5-10), without due regard to
the fact that the patient was inside the operating
Erlinda Ramos stayed at the ICU for a month. room for almost three (3) hours. For after she
About four months thereafter or on November 15, committed a mistake in intubating [the] patient, the
1985, the patient was released from the hospital. patient's nailbed became bluish and the patient,
thereafter, was placed in trendelenburg position,
During the whole period of her confinement, she because of the decrease of blood supply to the
incurred hospital bills amounting to P93,542.25 patient's brain. The evidence further shows that the
which is the subject of a promissory note and hapless patient suffered brain damage because of
affidavit of undertaking executed by Rogelio E. the absence of oxygen in her (patient's) brain for
Ramos in favor of DLSMC. Since that fateful approximately four to five minutes which, in turn,
afternoon of June 17, 1985, she has been in a caused the patient to become comatose.
comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see On the part of Dr. Orlino Hosaka, this Court finds
or hear. She is living on mechanical means. She that he is liable for the acts of Dr. Perfecta
suffered brain damage as a result of the absence of Gutierrez whom he had chosen to administer
oxygen in her brain for four to five minutes (TSN, anesthesia on the patient as part of his obligation
November 9, 1989, pp. 21-22). After being to provide the patient a good anesthesiologist', and
discharged from the hospital, she has been staying for arriving for the scheduled operation almost
in their residence, still needing constant medical three (3) hours late.
attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to On the part of DLSMC (the hospital), this Court
P10,000.00 (TSN, October 19, 1989, pp. 32-34). finds that it is liable for the acts of negligence of
She was also diagnosed to be suffering from the doctors in their "practice of medicine" in the
"diffuse cerebral parenchymal damage" (Exh. "G"; operating room. Moreover, the hospital is liable
see also TSN, December 21, 1989, for failing through its responsible officials, to
p. 6). 5 cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages
with the Regional Trial Court of Quezon City against herein private In having held thus, this Court rejects the defense
respondents alleging negligence in the management and care of raised by defendants that they have acted with due
Erlinda Ramos. care and prudence in rendering medical services to
plaintiff-patient. For if the patient was properly
During the trial, both parties presented evidence as to the possible intubated as claimed by them, the patient would
cause of Erlinda's injury. Plaintiff presented the testimonies of Dean not have become comatose. And, the fact that
Herminda Cruz and Dr. Mariano Gavino to prove that the sustained another anesthesiologist was called to try to
by Erlinda was due to lack of oxygen in her brain caused by the intubate the patient after her (the patient's) nailbed
faulty management of her airway by private respondents during the turned bluish, belie their claim. Furthermore, the
anesthesia phase. On the other hand, private respondents primarily defendants should have rescheduled the operation
relied on the expert testimony of Dr. Eduardo Jamora, a to a later date. This, they should have done, if
pulmonologist, to the effect that the cause of brain damage was defendants acted with due care and prudence as the
Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium patient's case was an elective, not an emergency
(Pentothal). case.

After considering the evidence from both sides, the Regional Trial x x x           x x x          x x x
Court rendered judgment in favor of petitioners, to wit:
WHEREFORE, and in view of the foregoing,
After evaluating the evidence as shown in the judgment is rendered in favor of the plaintiffs and
finding of facts set forth earlier, and applying the against the defendants. Accordingly, the latter are
aforecited provisions of law and jurisprudence to ordered to pay, jointly and severally, the former
the case at bar, this Court finds and so holds that the following sums of money, to wit:
defendants are liable to plaintiffs for damages. The
 P a g e | 90

1) the sum of P8,000.00 as fifteen-day (15) period for filing a motion for reconsideration had
actual monthly expenses for the already expired, to wit:
plaintiff Erlinda Ramos
reckoned from November 15, We said in our Resolution on July 25, 1995, that
1985 or in the total sum of the filing of a Motion for Reconsideration cannot
P632,000.00 as of April 15, be extended; precisely, the Motion for Extension
1992, subject to its being (Rollo, p. 12) was denied. It is, on the other hand,
updated; admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision
2) the sum of P100,000.00 as as early as June 9, 1995. Computation wise, the
reasonable attorney's fees; period to file a Motion for Reconsideration expired
on June 24. The Motion for Reconsideration, in
3) the sum of P800,000.00 by turn, was received by the Court of Appeals already
way of moral damages and the on July 4, necessarily, the 15-day period already
further sum of P200,000,00 by passed. For that alone, the latter should be denied.
way of exemplary damages; and,
Even assuming admissibility of the Motion for the
4) the costs of the suit. Reconsideration, but after considering the
Comment/Opposition, the former, for lack of
SO ORDERED. 7 merit, is hereby DENIED.

Private respondents seasonably interposed an appeal to the Court of SO ORDERED. 10

Appeals. The appellate court rendered a Decision, dated 29 May
1995, reversing the findings of the trial court. The decretal portion of A copy of the above resolution was received by Atty. Sillano on 11
the decision of the appellate court reads: April 1996. The next day, or on 12 April 1996, Atty. Sillano filed
before this Court a motion for extension of time to file the present
WHEREFORE, for the foregoing premises the petition for certiorari under Rule 45. The Court granted the motion
appealed decision is hereby REVERSED, and the for extension of time and gave petitioners additional thirty (30) days
complaint below against the appellants is hereby after the expiration of the fifteen-day (15) period counted from the
ordered DISMISSED. The counterclaim of receipt of the resolution of the Court of Appeals within which to
appellant De Los Santos Medical Center is submit the petition. The due date fell on 27 May 1996. The petition
GRANTED but only insofar as appellees are was filed on 9 May 1996, well within the extended period given by
hereby ordered to pay the unpaid hospital bills the Court.
amounting to P93,542.25, plus legal interest for
justice must be tempered with mercy. Petitioners assail the decision of the Court of Appeals on the
following grounds:
SO ORDERED. 8
I
The decision of the Court of Appeals was received on 9 June 1995
by petitioner Rogelio Ramos who was mistakenly addressed as IN PUTTING MUCH RELIANCE ON THE
"Atty. Rogelio Ramos." No copy of the decision, however, was sent TESTIMONIES OF RESPONDENTS DRA.
nor received by the Coronel Law Office, then counsel on record of GUTIERREZ, DRA. CALDERON AND DR.
petitioners. Rogelio referred the decision of the appellate court to a JAMORA;
new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
before the expiration of the reglementary period for filing a motion II
for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for IN FINDING THAT THE NEGLIGENCE OF
reconsideration. The motion for reconsideration was submitted on 4 THE RESPONDENTS DID NOT CAUSE THE
July 1995. However, the appellate court denied the motion for UNFORTUNATE COMATOSE CONDITION OF
extension of time in its Resolution dated 25 July 1995. 9 Meanwhile, PETITIONER ERLINDA RAMOS;
petitioners engaged the services of another counsel, Atty. Sillano, to
replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion III
to admit the motion for reconsideration contending that the period to
file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of IN NOT APPLYING THE DOCTRINE OF RES
Appeals had not yet served a copy thereof to the counsel on record. IPSA LOQUITUR. 11
Despite this explanation, the appellate court still denied the motion
to admit the motion for reconsideration of petitioners in its Before we discuss the merits of the case, we shall first dispose of the
Resolution, dated 29 March 1996, primarily on the ground that the procedural issue on the timeliness of the petition in relation to the
motion for reconsideration filed by petitioners with the Court of
 P a g e | 91

Appeals. In their instrumentality causing the injury in the absence of some

Comment, 12 private respondents contend that the petition should explanation by the defendant who is charged with negligence. 15 It
not be given due course since the motion for reconsideration of the is grounded in the superior logic of ordinary human experience and
petitioners on the decision of the Court of Appeals was validly on the basis of such experience or common knowledge, negligence
dismissed by the appellate court for having been filed beyond the may be deduced from the mere occurrence of the accident itself. 16
reglementary period. We do not agree. Hence, res ipsa loquitur is applied in conjunction with the doctrine
of common knowledge.
A careful review of the records reveals that the reason behind the
delay in filing the motion for reconsideration is attributable to the However, much has been said that res ipsa loquitur is not a rule of
fact that the decision of the Court of Appeals was not sent to then substantive law and, as such, does not create or constitute an
counsel on record of petitioners, the Coronel Law Office. In fact, a independent or separate ground of liability. 17 Instead, it is
copy of the decision of the appellate court was instead sent to and considered as merely evidentiary or in the nature of a procedural
received by petitioner Rogelio Ramos on 9 June 1995 wherein he rule. 18 It is regarded as a mode of proof, or a mere procedural of
was mistakenly addressed as Atty. Rogelio Ramos. Based on the convenience since it furnishes a substitute for, and relieves a plaintiff
other communications received by petitioner Rogelio Ramos, the of, the burden of producing specific proof of negligence. 19 In other
appellate court apparently mistook him for the counsel on record. words, mere invocation and application of the doctrine does not
Thus, no copy of the decision of the counsel on record. Petitioner, dispense with the requirement of proof of negligence. It is simply a
not being a lawyer and unaware of the prescriptive period for filing a step in the process of such proof, permitting the plaintiff to present
motion for reconsideration, referred the same to a legal counsel only along with the proof of the accident, enough of the attending
on 20 June 1995. circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant the
It is elementary that when a party is represented by counsel, all burden of going forward with the proof. 20 Still, before resort to the
notices should be sent to the party's lawyer at his given address. doctrine may be allowed, the following requisites must be
With a few exceptions, notice to a litigant without notice to his satisfactorily shown:
counsel on record is no notice at all. In the present case, since a copy
of the decision of the appellate court was not sent to the counsel on 1. The accident is of a kind
record of petitioner, there can be no sufficient notice to speak of. which ordinarily does not occur
Hence, the delay in the filing of the motion for reconsideration in the absence of someone's
cannot be taken against petitioner. Moreover, since the Court of negligence;
Appeals already issued a second Resolution, dated 29 March 1996,
which superseded the earlier resolution issued on 25 July 1995, and 2. It is caused by an
denied the motion for reconsideration of petitioner, we believed that instrumentality within the
the receipt of the former should be considered in determining the exclusive control of the
timeliness of the filing of the present petition. Based on this, the defendant or defendants; and
petition before us was submitted on time.
3. The possibility of contributing
After resolving the foregoing procedural issue, we shall now look conduct which would make the
into the merits of the case. For a more logical presentation of the plaintiff responsible is
discussion we shall first consider the issue on the applicability of the eliminated. 21
doctrine of res ipsa loquitur to the instant case. Thereafter, the first
two assigned errors shall be tackled in relation to the res ipsa In the above requisites, the fundamental element is the "control of
loquitur doctrine. instrumentality" which caused the damage. 22 Such element of
control must be shown to be within the dominion of the defendant.
Res ipsa loquitur is a Latin phrase which literally means "the thing In order to have the benefit of the rule, a plaintiff, in addition to
or the transaction speaks for itself." The phrase "res ipsa loquitur'' is proving injury or damage, must show a situation where it is
a maxim for the rule that the fact of the occurrence of an injury, applicable, and must establish that the essential elements of the
taken with the surrounding circumstances, may permit an inference doctrine were present in a particular incident. 23
or raise a presumption of negligence, or make out a plaintiff's prima
facie case, and present a question of fact for defendant to meet with Medical malpractice 24 cases do not escape the application of this
an explanation. 13 Where the thing which caused the injury doctrine. Thus, res ipsa loquitur has been applied when the
complained of is shown to be under the management of the circumstances attendant upon the harm are themselves of such a
defendant or his servants and the accident is such as in ordinary character as to justify an inference of negligence as the cause of that
course of things does not happen if those who have its management harm. 25 The application of res ipsa loquitur in medical negligence
or control use proper care, it affords reasonable evidence, in the cases presents a question of law since it is a judicial function to
absence of explanation by the defendant, that the accident arose from determine whether a certain set of circumstances does, as a matter of
or was caused by the defendant's want of care. 14 law, permit a given inference. 26

The doctrine of res ipsa loquitur is simply a recognition of the Although generally, expert medical testimony is relied upon in
postulate that, as a matter of common knowledge and experience, the malpractice suits to prove that a physician has done a negligent act
very nature of certain types of occurrences may justify an inference or that he has deviated from the standard medical procedure, when
of negligence on the part of the person who controls the
 P a g e | 92

the doctrine of res ipsa loquitur is availed by the plaintiff, the need loquitur is not available in a malpractice suit if the only showing is
for expert medical testimony is dispensed with because the injury that the desired result of an operation or treatment was not
itself provides the proof of negligence. 27 The reason is that the accomplished. 40 The real question, therefore, is whether or not in
general rule on the necessity of expert testimony applies only to such the process of the operation any extraordinary incident or unusual
matters clearly within the domain of medical science, and not to event outside of the routine performance occurred which is beyond
matters that are within the common knowledge of mankind which the regular scope of customary professional activity in such
may be testified to by anyone familiar with the facts. 28 Ordinarily, operations, which, if unexplained would themselves reasonably
only physicians and surgeons of skill and experience are competent speak to the average man as the negligent cause or causes of the
to testify as to whether a patient has been treated or operated upon untoward consequence. 41 If there was such extraneous
with a reasonable degree of skill and care. However, testimony as to interventions, the doctrine of res ipsa loquitur may be utilized and
the statements and acts of physicians and surgeons, external the defendant is called upon to explain the matter, by evidence of
appearances, and manifest conditions which are observable by any exculpation, if he could. 42
one may be given by non-expert witnesses. 29 Hence, in cases where
the res ipsa loquitur is applicable, the court is permitted to find a We find the doctrine of res ipsa loquitur appropriate in the case at
physician negligent upon proper proof of injury to the patient, bar. As will hereinafter be explained, the damage sustained by
without the aid of expert testimony, where the court from its fund of Erlinda in her brain prior to a scheduled gall bladder operation
common knowledge can determine the proper standard of care. 30 presents a case for the application of res ipsa loquitur.
Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been A case strikingly similar to the one before us is Voss vs. Bridwell, 43
exercised, an inference of negligence may be drawn giving rise to an where the Kansas Supreme Court in applying the res ipsa loquitur
application of the doctrine of res ipsa loquitur without medical stated:
evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. 31 When the doctrine is
appropriate, all that the patient must do is prove a nexus between the The plaintiff herein submitted himself for a
particular act or omission complained of and the injury sustained mastoid operation and delivered his person over to
while under the custody and management of the defendant without the care, custody and control of his physician who
need to produce expert medical testimony to establish the standard had complete and exclusive control over him, but
of care. Resort to res ipsa loquitur is allowed because there is no the operation was never performed. At the time of
other way, under usual and ordinary conditions, by which the patient submission he was neurologically sound and
can obtain redress for injury suffered by him. physically fit in mind and body, but he suffered
irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury
Thus, courts of other jurisdictions have applied the doctrine in the was one which does not ordinarily occur in the
following situations: leaving of a foreign object in the body of the process of a mastoid operation or in the absence of
patient after an operation, 32 injuries sustained on a healthy part of negligence in the administration of an anesthetic,
the body which was not under, or in the area, of treatment, 33 and in the use and employment of an
removal of the wrong part of the body when another part was endoctracheal tube. Ordinarily a person being put
intended, 34 knocking out a tooth while a patient's jaw was under under anesthesia is not rendered decerebrate as a
anesthetic for the removal of his tonsils, 35 and loss of an eye while consequence of administering such anesthesia in
the patient plaintiff was under the influence of anesthetic, during or the absence of negligence. Upon these facts and
following an operation for appendicitis, 36 among others. under these circumstances a layman would be able
to say, as a matter of common knowledge and
Nevertheless, despite the fact that the scope of res ipsa loquitur has observation, that the consequences of professional
been measurably enlarged, it does not automatically apply to all treatment were not as such as would ordinarily
cases of medical negligence as to mechanically shift the burden of have followed if due care had been exercised.
proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be Here the plaintiff could not have been guilty of
perfunctorily used but a rule to be cautiously applied, depending contributory negligence because he was under the
upon the circumstances of each case. It is generally restricted to influence of anesthetics and unconscious, and the
situations in malpractice cases where a layman is able to say, as a circumstances are such that the true explanation of
matter of common knowledge and observation, that the event is more accessible to the defendants than to
consequences of professional care were not as such as would the plaintiff for they had the exclusive control of
ordinarily have followed if due care had been the instrumentalities of anesthesia.
exercised. 37 A distinction must be made between the failure to
secure results, and the occurrence of something more unusual and
not ordinarily found if the service or treatment rendered followed the Upon all the facts, conditions and circumstances
usual procedure of those skilled in that particular practice. It must be alleged in Count II it is held that a cause of action
conceded that the doctrine of res ipsa loquitur can have no is stated under the doctrine of res ipsa loquitur. 44
application in a suit against a physician or surgeon which involves
the merits of a diagnosis or of a scientific treatment. 38 The Indeed, the principles enunciated in the aforequoted case apply with
physician or surgeon is not required at his peril to explain why any equal force here. In the present case, Erlinda submitted herself for
particular diagnosis was not correct, or why any particular scientific cholecystectomy and expected a routine general surgery to be
treatment did not produce the desired result. 39 Thus, res ipsa performed on her gall bladder. On that fateful day she delivered her
 P a g e | 93

person over to the care, custody and control of private respondents that private respondents were able to show that the brain damage
who exercised complete and exclusive control over her. At the time sustained by Erlinda was not caused by the alleged faulty intubation
of submission, Erlinda was neurologically sound and, except for a but was due to the allergic reaction of the patient to the drug
few minor discomforts, was likewise physically fit in mind and Thiopental Sodium (Pentothal), a short-acting barbiturate, as
body. However, during the administration of anesthesia and prior to testified on by their expert witness, Dr. Jamora. On the other hand,
the performance of cholecystectomy she suffered irreparable damage the appellate court rejected the testimony of Dean Herminda Cruz
to her brain. Thus, without undergoing surgery, she went out of the offered in favor of petitioners that the cause of the brain injury was
operating room already decerebrate and totally incapacitated. traceable to the wrongful insertion of the tube since the latter, being
Obviously, brain damage, which Erlinda sustained, is an injury a nurse, was allegedly not knowledgeable in the process of
which does not normally occur in the process of a gall bladder intubation. In so holding, the appellate court returned a verdict in
operation. In fact, this kind of situation does not in the absence of favor of respondents physicians and hospital and absolved them of
negligence of someone in the administration of anesthesia and in the any liability towards Erlinda and her family.
use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of We disagree with the findings of the Court of Appeals. We hold that
administering such anesthesia if the proper procedure was followed. private respondents were unable to disprove the presumption of
Furthermore, the instruments used in the administration of negligence on their part in the care of Erlinda and their negligence
anesthesia, including the endotracheal tube, were all under the was the proximate cause of her piteous condition.
exclusive control of private respondents, who are the physicians-in-
charge. Likewise, petitioner Erlinda could not have been guilty of In the instant case, the records are helpful in furnishing not only the
contributory negligence because she was under the influence of logical scientific evidence of the pathogenesis of the injury but also
anesthetics which rendered her unconscious. in providing the Court the legal nexus upon which liability is based.
As will be shown hereinafter, private respondents' own testimonies
Considering that a sound and unaffected member of the body (the which are reflected in the transcript of stenographic notes are replete
brain) is injured or destroyed while the patient is unconscious and of signposts indicative of their negligence in the care and
under the immediate and exclusive control of the physicians, we management of Erlinda.
hold that a practical administration of justice dictates the application
of res ipsa loquitur. Upon these facts and under these circumstances With regard to Dra. Gutierrez, we find her negligent in the care of
the Court would be able to say, as a matter of common knowledge Erlinda during the anesthesia phase. As borne by the records,
and observation, if negligence attended the management and care of respondent Dra. Gutierrez failed to properly intubate the patient.
the patient. Moreover, the liability of the physicians and the hospital This fact was attested to by Prof. Herminda Cruz, Dean of the
in this case is not predicated upon an alleged failure to secure the Capitol Medical Center School of Nursing and petitioner's sister-in-
desired results of an operation nor on an alleged lack of skill in the law, who was in the operating room right beside the patient when the
diagnosis or treatment as in fact no operation or treatment was ever tragic event occurred. Witness Cruz testified to this effect:
performed on Erlinda. Thus, upon all these initial determination a
case is made out for the application of the doctrine of res ipsa
loquitur. ATTY. PAJARES:

Nonetheless, in holding that res ipsa loquitur is available to the Q: In particular, what did Dra.
present case we are not saying that the doctrine is applicable in any Perfecta Gutierrez do, if any on
and all cases where injury occurs to a patient while under anesthesia, the patient?
or to any and all anesthesia cases. Each case must be viewed in its
own light and scrutinized in order to be within the res ipsa loquitur A: In particular, I could see that
coverage. she was intubating the patient.

Having in mind the applicability of the res ipsa loquitur doctrine and Q: Do you know what happened
the presumption of negligence allowed therein, the Court now comes to that intubation process
to the issue of whether the Court of Appeals erred in finding that administered by Dra. Gutierrez?
private respondents were not negligent in the care of Erlinda during
the anesthesia phase of the operation and, if in the affirmative, ATTY. ALCERA:
whether the alleged negligence was the proximate cause of Erlinda's
comatose condition. Corollary thereto, we shall also determine if the She will be incompetent Your
Court of Appeals erred in relying on the testimonies of the witnesses Honor.
for the private respondents.
COURT:
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon
Witness may answer if she
and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez,
knows.
the Court of Appeals rationalized that she was candid enough to
admit that she experienced some difficulty in the endotracheal
intubation 45 of the patient and thus, cannot be said to be covering A: As have said, I was with the
her negligence with falsehood. The appellate court likewise opined patient, I was beside the
 P a g e | 94

stretcher holding the left hand of A: When Dr. Calderon try (sic)
the patient and all of a sudden to intubate the patient, after a
heard some remarks coming while the patient's nailbed
from Dra. Perfecta Gutierrez became bluish and I saw the
herself. She was saying "Ang patient was placed in
hirap ma-intubate nito, mali yata trendelenburg position.
ang pagkakapasok. O lumalaki
ang tiyan. x x x           x x x          x x x

x x x           x x x          x x x Q: Do you know the reason why

the patient was placed in that
ATTY. PAJARES: trendelenburg position?

Q: From whom did you hear A: As far as I know, when a

those words "lumalaki ang patient is in that position, there
tiyan"? is a decrease of blood supply to
the brain. 46
A: From Dra. Perfecta Gutierrez.
x x x           x x x          x x x
x x x           x x x          x x x
The appellate court, however, disbelieved Dean Cruz's testimony in
Q: After hearing the phrase the trial court by declaring that:
"lumalaki ang tiyan," what did
you notice on the person of the A perusal of the standard nursing curriculum in
patient? our country will show that intubation is not taught
as part of nursing procedures and techniques.
A: I notice (sic) some bluish Indeed, we take judicial notice of the fact that
discoloration on the nailbeds of nurses do not, and cannot, intubate. Even on the
the left hand where I was at. assumption that she is fully capable of determining
whether or not a patient is properly intubated,
Q: Where was Dr. Orlino witness Herminda Cruz, admittedly, did not peep
Ho[s]aka then at that particular into the throat of the patient. (TSN, July 25, 1991,
time? p. 13). More importantly, there is no evidence that
she ever auscultated the patient or that she
conducted any type of examination to check if the
A: I saw him approaching the endotracheal tube was in its proper place, and to
patient during that time. determine the condition of the heart, lungs, and
other organs. Thus, witness Cruz's categorical
Q: When he approached the statements that appellant Dra. Gutierrez failed to
patient, what did he do, if any? intubate the appellee Erlinda Ramos and that it
was Dra. Calderon who succeeded in doing so
A: He made an order to call on clearly suffer from lack of sufficient factual bases.
the anesthesiologist in the person 47
of Dr. Calderon.
In other words, what the Court of Appeals is trying to impress is that
Q: Did Dr. Calderon, upon being being a nurse, and considered a layman in the process of intubation,
called, arrive inside the witness Cruz is not competent to testify on whether or not the
operating room? intubation was a success.

A: Yes sir. We do not agree with the above reasoning of the appellate court.
Although witness Cruz is not an anesthesiologist, she can very well
Q: What did [s]he do, if any? testify upon matters on which she is capable of observing such as,
the statements and acts of the physician and surgeon, external
appearances, and manifest conditions which are observable by any
A: [S]he tried to intubate the
one. 48 This is precisely allowed under the doctrine of res ipsa
patient.
loquitur where the testimony of expert witnesses is not required. It is
the accepted rule that expert testimony is not necessary for the proof
Q: What happened to the of negligence in non-technical matters or those of which an ordinary
patient? person may be expected to have knowledge, or where the lack of
skill or want of care is so obvious as to render expert testimony
 P a g e | 95

unnecessary. 49 We take judicial notice of the fact that anesthesia A: Yes, because of (sic) my first
procedures have become so common, that even an ordinary person attempt, I did not see right away.
can tell if it was administered properly. As such, it would not be too 51
difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be Curiously in the case at bar, respondent Dra. Gutierrez made the
acceptable. haphazard defense that she encountered hardship in the insertion of
the tube in the trachea of Erlinda because it was positioned more
At any rate, without doubt, petitioner's witness, an experienced anteriorly (slightly deviated from the normal anatomy of a person)
clinical nurse whose long experience and scholarship led to her 52 making it harder to locate and, since Erlinda is obese and has a
appointment as Dean of the Capitol Medical Center School at short neck and protruding teeth, it made intubation even more
Nursing, was fully capable of determining whether or not the difficult.
intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and clinical The argument does not convince us. If this was indeed observed,
instructor in a teaching hospital, the FEU-NRMF; Dean of the private respondents adduced no evidence demonstrating that they
Laguna College of Nursing in San Pablo City; and then Dean of the proceeded to make a thorough assessment of Erlinda's airway, prior
Capitol Medical Center School of Nursing. 50 Reviewing witness to the induction of anesthesia, even if this would mean postponing
Cruz' statements, we find that the same were delivered in a the procedure. From their testimonies, it appears that the observation
straightforward manner, with the kind of detail, clarity, consistency was made only as an afterthought, as a means of defense.
and spontaneity which would have been difficult to fabricate. With
her clinical background as a nurse, the Court is satisfied that she was The pre-operative evaluation of a patient prior to the administration
able to demonstrate through her testimony what truly transpired on of anesthesia is universally observed to lessen the possibility of
that fateful day. anesthetic accidents. Pre-operative evaluation and preparation for
anesthesia begins when the anesthesiologist reviews the patient's
Most of all, her testimony was affirmed by no less than respondent medical records and visits with the patient, traditionally, the day
Dra. Gutierrez who admitted that she experienced difficulty in before elective surgery. 53 It includes taking the patient's medical
inserting the tube into Erlinda's trachea, to wit: history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
ATTY. LIGSAY: performed by the anesthesiologist is directed primarily toward the
central nervous system, cardiovascular system, lungs and upper
Q: In this particular case, airway. 55 A thorough analysis of the patient's airway normally
Doctora, while you were involves investigating the following: cervical spine mobility,
intubating at your first attempt temporomandibular mobility, prominent central incisors, diseased or
(sic), you did not immediately artificial teeth, ability to visualize uvula and the thyromental
see the trachea? distance. 56 Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult should be
DRA. GUTIERREZ: studied. 57 Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short neck and
protruding teeth of Erlinda) a thorough examination of the patient's
A: Yes sir. airway would go a long way towards decreasing patient morbidity
and mortality.
Q: Did you pull away the tube
immediately? In the case at bar, respondent Dra. Gutierrez admitted that she saw
Erlinda for the first time on the day of the operation itself, on 17
A: You do not pull the . . . June 1985. Before this date, no prior consultations with, or pre-
operative evaluation of Erlinda was done by her. Until the day of the
Q: Did you or did you not? operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not
A: I did not pull the tube. properly informed of the possible difficulties she would face during
the administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez' act of seeing her patient for the first time only an hour
Q: When you said "mahirap yata
before the scheduled operative procedure was, therefore, an act of
ito," what were you referring to?
exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human
A: "Mahirap yata itong i- lives lie at the core of the physician's centuries-old Hippocratic Oath.
intubate," that was the patient. Her failure to follow this medical procedure is, therefore, a clear
indicia of her negligence.
Q: So, you found some difficulty
in inserting the tube? Respondent Dra. Gutierrez, however, attempts to gloss over this
omission by playing around with the trial court's ignorance of
clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference between an
 P a g e | 96

elective surgery and an emergency surgery just so her failure to who advanced private respondents' theory that the oxygen
perform the required pre-operative evaluation would escape deprivation which led to anoxic encephalopathy, 60 was due to an
unnoticed. In her testimony she asserted: unpredictable drug reaction to the short-acting barbiturate. We find
the theory of private respondents unacceptable.
ATTY. LIGSAY:
First of all, Dr. Jamora cannot be considered an authority in the field
Q: Would you agree, Doctor, of anesthesiology simply because he is not an anesthesiologist. Since
that it is good medical practice Dr. Jamora is a pulmonologist, he could not have been capable of
to see the patient a day before so properly enlightening the court about anesthesia practice and
you can introduce yourself to procedure and their complications. Dr. Jamora is likewise not an
establish good doctor-patient allergologist and could not therefore properly advance expert
relationship and gain the trust opinion on allergic-mediated processes. Moreover, he is not a
and confidence of the patient? pharmacologist and, as such, could not have been capable, as an
expert would, of explaining to the court the pharmacologic and toxic
DRA. GUTIERREZ: effects of the supposed culprit, Thiopental Sodium (Pentothal).

A: As I said in my previous The inappropriateness and absurdity of accepting Dr. Jamora's

statement, it depends on the testimony as an expert witness in the anesthetic practice of Pentothal
operative procedure of the administration is further supported by his own admission that he
anesthesiologist and in my case, formulated his opinions on the drug not from the practical
with elective cases and normal experience gained by a specialist or expert in the administration and
cardio-pulmonary clearance like use of Sodium Pentothal on patients, but only from reading certain
that, I usually don't do it except references, to wit:
on emergency and on cases that
have an abnormalities (sic). 58 ATTY. LIGSAY:

However, the exact opposite is true. In an emergency procedure, Q: In your line of expertise on
there is hardly enough time available for the fastidious demands of pulmonology, did you have any
pre-operative procedure so that an anesthesiologist is able to see the occasion to use pentothal as a
patient only a few minutes before surgery, if at all. Elective method of management?
procedures, on the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases, the DR. JAMORA:
anesthesiologist possesses the luxury of time to be at the patient's
beside to do a proper interview and clinical evaluation. There is A: We do it in conjunction with
ample time to explain the method of anesthesia, the drugs to be used, the anesthesiologist when they
and their possible hazards for purposes of informed consent. have to intubate our patient.
Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and Q: But not in particular when
cooperative. you practice pulmonology?

Erlinda's case was elective and this was known to respondent Dra. A: No.
Gutierrez. Thus, she had all the time to make a thorough evaluation
of Erlinda's case prior to the operation and prepare her for
anesthesia. However, she never saw the patient at the bedside. She Q: In other words, your
herself admitted that she had seen petitioner only in the operating knowledge about pentothal is
room, and only on the actual date of the cholecystectomy. She based only on what you have
negligently failed to take advantage of this important opportunity. read from books and not by your
As such, her attempt to exculpate herself must fail. own personal application of the
medicine pentothal?
Having established that respondent Dra. Gutierrez failed to perform
pre-operative evaluation of the patient which, in turn, resulted to a A: Based on my personal
wrongful intubation, we now determine if the faulty intubation is experience also on pentothal.
truly the proximate cause of Erlinda's comatose condition.
Q: How many times have you
Private respondents repeatedly hammered the view that the cerebral used pentothal?
anoxia which led to Erlinda's coma was due to bronchospasm 59
mediated by her allergic response to the drug, Thiopental Sodium, A: They used it on me. I went
introduced into her system. Towards this end, they presented Dr. into bronchospasm during my
Jamora, a Fellow of the Philippine College of Physicians and appendectomy.
Diplomate of the Philippine Specialty Board of Internal Medicine,
 P a g e | 97

Q: And because they have used In view of the evidence at hand, we are inclined to believe
it on you and on account of your petitioners' stand that it was the faulty intubation which was the
own personal experience you proximate cause of Erlinda's comatose condition.
feel that you can testify on
pentothal here with medical Proximate cause has been defined as that which, in natural and
authority? continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have
A: No. That is why I used occurred. 64 An injury or damage is proximately caused by an act or
references to support my claims. a failure to act, whenever it appears from the evidence in the case,
61 that the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage
An anesthetic accident caused by a rare drug-induced bronchospasm was either a direct result or a reasonably probable consequence of
properly falls within the fields of anesthesia, internal medicine- the act or omission. 65 It is the dominant, moving or producing
allergy, and clinical pharmacology. The resulting anoxic cause.
encephalopathy belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are within the Applying the above definition in relation to the evidence at hand,
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic faulty intubation is undeniably the proximate cause which triggered
drug-induced, allergic mediated bronchospasm alleged in this case is the chain of events leading to Erlinda's brain damage and, ultimately,
within the disciplines of anesthesiology, allergology and her comatosed condition.
pharmacology. On the basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify about the Private respondents themselves admitted in their testimony that the
drug with medical authority, it is clear that the appellate court erred first intubation was a failure. This fact was likewise observed by
in giving weight to Dr. Jamora's testimony as an expert in the witness Cruz when she heard respondent Dra. Gutierrez remarked,
administration of Thiopental Sodium. "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal
The provision in the rules of evidence 62 regarding expert witnesses distention on the body of Erlinda. The development of abdominal
states: distention, together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory
Sec. 49. Opinion of expert witness. — The opinion tree. In other words, instead of the intended endotracheal intubation
of a witness on a matter requiring special what actually took place was an esophageal intubation. During
knowledge, skill, experience or training which he intubation, such distention indicates that air has entered the
is shown to possess, may be received in evidence. gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause
Generally, to qualify as an expert witness, one must have acquired some delay in oxygen delivery into the lungs as the tube which
special knowledge of the subject matter about which he or she is to carries oxygen is in the wrong place. That abdominal distention had
testify, either by the study of recognized authorities on the subject or been observed during the first intubation suggests that the length of
by practical experience. 63 Clearly, Dr. Jamora does not qualify as time utilized in inserting the endotracheal tube (up to the time the
an expert witness based on the above standard since he lacks the tube was withdrawn for the second attempt) was fairly significant.
necessary knowledge, skill, and training in the field of Due to the delay in the delivery of oxygen in her lungs Erlinda
anesthesiology. Oddly, apart from submitting testimony from a showed signs of cyanosis. 66 As stated in the testimony of Dr.
specialist in the wrong field, private respondents' intentionally Hosaka, the lack of oxygen became apparent only after he noticed
avoided providing testimony by competent and independent experts that the nailbeds of Erlinda were already blue. 67 However, private
in the proper areas. respondents contend that a second intubation was executed on
Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims,
Moreover, private respondents' theory, that Thiopental Sodium may which supports the contention that the second intubation was
have produced Erlinda's coma by triggering an allergic mediated successful. Assuming that the endotracheal tube finally found its
response, has no support in evidence. No evidence of stridor, skin way into the proper orifice of the trachea, the same gave no
reactions, or wheezing — some of the more common accompanying guarantee of oxygen delivery, the hallmark of a successful
signs of an allergic reaction — appears on record. No laboratory data intubation. In fact, cyanosis was again observed immediately after
were ever presented to the court. the second intubation. Proceeding from this event (cyanosis), it
could not be claimed, as private respondents insist, that the second
In any case, private respondents themselves admit that Thiopental intubation was accomplished. Even granting that the tube was
induced, allergic-mediated bronchospasm happens only very rarely. successfully inserted during the second attempt, it was obviously too
If courts were to accept private respondents' hypothesis without late. As aptly explained by the trial court, Erlinda already suffered
supporting medical proof, and against the weight of available brain damage as a result of the inadequate oxygenation of her brain
evidence, then every anesthetic accident would be an act of God. for about four to five minutes. 68
Evidently, the Thiopental-allergy theory vigorously asserted by
private respondents was a mere afterthought. Such an explanation The above conclusion is not without basis. Scientific studies point
was advanced in order to advanced in order to absolve them of any out that intubation problems are responsible for one-third (1/3) of
and all responsibility for the patient's condition. deaths and serious injuries associated with anesthesia. 69
 P a g e | 98

Nevertheless, ninety-eight percent (98%) or the vast majority of performance as a specialist is generally evaluated by a peer review
difficult intubations may be anticipated by performing a thorough committee on the basis of mortality and morbidity statistics, and
evaluation of the patient's airway prior to the operation. 70 As stated feedback from patients, nurses, interns and residents. A consultant
beforehand, respondent Dra. Gutierrez failed to observe the proper remiss in his duties, or a consultant who regularly falls short of the
pre-operative protocol which could have prevented this unfortunate minimum standards acceptable to the hospital or its peer review
incident. Had appropriate diligence and reasonable care been used in committee, is normally politely terminated.
the pre-operative evaluation, respondent physician could have been
much more prepared to meet the contingency brought about by the In other words, private hospitals, hire, fire and exercise real control
perceived anatomic variations in the patient's neck and oral area, over their attending and visiting "consultant" staff. While
defects which would have been easily overcome by a prior "consultants" are not, technically employees, a point which
knowledge of those variations together with a change in technique. respondent hospital asserts in denying all responsibility for the
71 In other words, an experienced anesthesiologist, adequately patient's condition, the control exercised, the hiring, and the right to
alerted by a thorough pre-operative evaluation, would have had little terminate consultants all fulfill the important hallmarks of an
difficulty going around the short neck and protruding teeth. 72 employer-employee relationship, with the exception of the payment
Having failed to observe common medical standards in pre-operative of wages. In assessing whether such a relationship in fact exists, the
management and intubation, respondent Dra. Gutierrez' negligence control test is determining. Accordingly, on the basis of the
resulted in cerebral anoxia and eventual coma of Erlinda. foregoing, we rule that for the purpose of allocating responsibility in
medical negligence cases, an employer-employee relationship in
We now determine the responsibility of respondent Dr. Orlino effect exists between hospitals and their attending and visiting
Hosaka as the head of the surgical team. As the so-called "captain of physicians. This being the case, the question now arises as to
the ship," 73 it is the surgeon's responsibility to see to it that those whether or not respondent hospital is solidarily liable with
under him perform their task in the proper manner. Respondent Dr. respondent doctors for petitioner's condition. 76
Hosaka's negligence can be found in his failure to exercise the
proper authority (as the "captain" of the operative team) in not The basis for holding an employer solidarily responsible for the
determining if his anesthesiologist observed proper anesthesia negligence of its employee is found in Article 2180 of the Civil
protocols. In fact, no evidence on record exists to show that Code which considers a person accountable not only for his own acts
respondent Dr. Hosaka verified if respondent Dra. Gutierrez but also for those of others based on the former's responsibility
properly intubated the patient. Furthermore, it does not escape us under a relationship of patria potestas. 77 Such responsibility ceases
that respondent Dr. Hosaka had scheduled another procedure in a when the persons or entity concerned prove that they have observed
different hospital at the same time as Erlinda's cholecystectomy, and the diligence of a good father of the family to prevent damage. 78 In
was in fact over three hours late for the latter's operation. Because of other words, while the burden of proving negligence rests on the
this, he had little or no time to confer with his anesthesiologist plaintiffs, once negligence is shown, the burden shifts to the
regarding the anesthesia delivery. This indicates that he was remiss respondents (parent, guardian, teacher or employer) who should
in his professional duties towards his patient. Thus, he shares equal prove that they observed the diligence of a good father of a family to
responsibility for the events which resulted in Erlinda's condition. prevent damage.

We now discuss the responsibility of the hospital in this particular In the instant case, respondent hospital, apart from a general denial
incident. The unique practice (among private hospitals) of filling up of its responsibility over respondent physicians, failed to adduce
specialist staff with attending and visiting "consultants," 74 who are evidence showing that it exercised the diligence of a good father of a
allegedly not hospital employees, presents problems in apportioning family in the hiring and supervision of the latter. It failed to adduce
responsibility for negligence in medical malpractice cases. However, evidence with regard to the degree of supervision which it exercised
the difficulty is only more apparent than real. over its physicians. In neglecting to offer such proof, or proof of a
similar nature, respondent hospital thereby failed to discharge its
In the first place, hospitals exercise significant control in the hiring burden under the last paragraph of Article 2180. Having failed to do
and firing of consultants and in the conduct of their work within the this, respondent hospital is consequently solidarily responsible with
hospital premises. Doctors who apply for "consultant" slots, visiting its physicians for Erlinda's condition.
or attending, are required to submit proof of completion of
residency, their educational qualifications; generally, evidence of Based on the foregoing, we hold that the Court of Appeals erred in
accreditation by the appropriate board (diplomate), evidence of accepting and relying on the testimonies of the witnesses for the
fellowship in most cases, and references. These requirements are private respondents. Indeed, as shown by the above discussions,
carefully scrutinized by members of the hospital administration or by private respondents were unable to rebut the presumption of
a review committee set up by the hospital who either accept or reject negligence. Upon these disquisitions we hold that private
the application. 75 This is particularly true with respondent hospital. respondents are solidarily liable for damages under Article 2176 79
of the Civil Code.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological We now come to the amount of damages due petitioners. The trial
conferences, conduct bedside rounds for clerks, interns and court awarded a total of P632,000.00 pesos (should be P616,000.00)
residents, moderate grand rounds and patient audits and perform in compensatory damages to the plaintiff, "subject to its being
other tasks and responsibilities, for the privilege of being able to updated" covering the period from 15 November 1985 up to 15 April
maintain a clinic in the hospital, and/or for the privilege of admitting 1992, based on monthly expenses for the care of the patient
patients into the hospital. In addition to these, the physician's estimated at P8,000.00.
 P a g e | 99

At current levels, the P8000/monthly amount established by the trial As it would not be equitable — and certainly not in the best interests
court at the time of its decision would be grossly inadequate to cover of the administration of justice — for the victim in such cases to
the actual costs of home-based care for a comatose individual. The constantly come before the courts and invoke their aid in seeking
calculated amount was not even arrived at by looking at the actual adjustments to the compensatory damages previously awarded —
cost of proper hospice care for the patient. What it reflected were the temperate damages are appropriate. The amount given as temperate
actual expenses incurred and proved by the petitioners after they damages, though to a certain extent speculative, should take into
were forced to bring home the patient to avoid mounting hospital account the cost of proper care.
bills.
In the instant case, petitioners were able to provide only home-based
And yet ideally, a comatose patient should remain in a hospital or be nursing care for a comatose patient who has remained in that
transferred to a hospice specializing in the care of the chronically ill condition for over a decade. Having premised our award for
for the purpose of providing a proper milieu adequate to meet compensatory damages on the amount provided by petitioners at the
minimum standards of care. In the instant case for instance, Erlinda onset of litigation, it would be now much more in step with the
has to be constantly turned from side to side to prevent bedsores and interests of justice if the value awarded for temperate damages
hypostatic pneumonia. Feeding is done by nasogastric tube. Food would allow petitioners to provide optimal care for their loved one in
preparation should be normally made by a dietitian to provide her a facility which generally specializes in such care. They should not
with the correct daily caloric requirements and vitamin supplements. be compelled by dire circumstances to provide substandard care at
Furthermore, she has to be seen on a regular basis by a physical home without the aid of professionals, for anything less would be
therapist to avoid muscle atrophy, and by a pulmonary therapist to grossly inadequate. Under the circumstances, an award of
prevent the accumulation of secretions which can lead to respiratory P1,500,000.00 in temperate damages would therefore be reasonable.
complications. 81

Given these considerations, the amount of actual damages In Valenzuela vs. Court of Appeals, 82 this Court was confronted
recoverable in suits arising from negligence should at least reflect with a situation where the injury suffered by the plaintiff would have
the correct minimum cost of proper care, not the cost of the care the led to expenses which were difficult to estimate because while they
family is usually compelled to undertake at home to avoid would have been a direct result of the injury (amputation), and were
bankruptcy. However, the provisions of the Civil Code on actual or certain to be incurred by the plaintiff, they were likely to arise only
compensatory damages present us with some difficulties. in the future. We awarded P1,000,000.00 in moral damages in that
case.
Well-settled is the rule that actual damages which may be claimed
by the plaintiff are those suffered by him as he has duly proved. The Describing the nature of the injury, the Court therein stated:
Civil Code provides:
As a result of the accident, Ma. Lourdes
Art. 2199. — Except as provided by law or by Valenzuela underwent a traumatic amputation of
stipulation, one is entitled to an adequate her left lower extremity at the distal left thigh just
compensation only for such pecuniary loss above the knee. Because of this, Valenzuela will
suffered by him as he has duly proved. Such forever be deprived of the full ambulatory
compensation is referred to as actual or functions of her left extremity, even with the use
compensatory damages. of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was
Our rules on actual or compensatory damages generally assume that paid for by Li), she will be required to undergo
at the time of litigation, the injury suffered as a consequence of an adjustments in her prosthetic devise due to the
act of negligence has been completed and that the cost can be shrinkage of the stump from the process of
liquidated. However, these provisions neglect to take into account healing.
those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from These adjustments entail costs, prosthetic
the injury, while certain to occur, are difficult to predict. replacements and months of physical and
occupational rehabilitation and therapy. During the
In these cases, the amount of damages which should be awarded, if lifetime, the prosthetic devise will have to be
they are to adequately and correctly respond to the injury caused, replaced and readjusted to changes in the size of
should be one which compensates for pecuniary loss incurred and her lower limb effected by the biological changes
proved, up to the time of trial; and one which would meet pecuniary of middle-age, menopause and aging. Assuming
loss certain to be suffered but which could not, from the nature of she reaches menopause, for example, the
the case, be made with certainty. 80 In other words, temperate prosthetic will have to be adjusted to respond to
damages can and should be awarded on top of actual or the changes in bone resulting from a precipitate
compensatory damages in instances where the injury is chronic and decrease in calcium levels observed in the bones of
continuing. And because of the unique nature of such cases, no all post-menopausal women. In other words, the
incompatibility arises when both actual and temperate damages are damage done to her would not only be permanent
provided for. The reason is that these damages cover two distinct and lasting, it would also be permanently changing
phases. and adjusting to the physiologic changes which her
body would normally undergo through the years.
 P a g e | 100

The replacements, changes, and adjustments will physician's experience with his patients would sometimes tempt him
require corresponding adjustive physical and to deviate from established community practices, and he may end a
occupational therapy. All of these adjustments, it distinguished career using unorthodox methods without incident.
has been documented, are painful. However, when failure to follow established procedure results in the
evil precisely sought to be averted by observance of the procedure
x x x           x x x          x x x and a nexus is made between the deviation and the injury or damage,
the physician would necessarily be called to account for it. In the
A prosthetic devise, however technologically case at bar, the failure to observe pre-operative assessment protocol
advanced, will only allow a reasonable amount of which would have influenced the intubation in a salutary way was
functional restoration of the motor functions of the fatal to private respondents' case.
lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness, psychological WHEREFORE, the decision and resolution of the appellate court
injury, mental and physical pain are inestimable. appealed from are hereby modified so as to award in favor of
83 petitioners, and solidarily against private respondents the following:
1) P1,352,000.00 as actual damages computed as of the date of
The injury suffered by Erlinda as a consequence of private promulgation of this decision plus a monthly payment of P8,000.00
respondents' negligence is certainly much more serious than the up to the time that petitioner Erlinda Ramos expires or miraculously
amputation in the Valenzuela case. survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and
attorney's fees; and, 5) the costs of the suit.SO ORDERED.
Petitioner Erlinda Ramos was in her mid-forties when the incident
occurred. She has been in a comatose state for over fourteen years
now. The burden of care has so far been heroically shouldered by her
husband and children, who, in the intervening years have been
deprived of the love of a wife and a mother. [G.R. No. 118141. September 5, 1997]

Meanwhile, the actual physical, emotional and financial cost of the LEONILA GARCIA-RUEDA, Petitioner, v. WILFREDO L.
care of petitioner would be virtually impossible to quantify. Even the PASCASIO, RAUL R. ARNAU, ABELARDO L.
temperate damages herein awarded would be inadequate if APORTADERA JR., Honorable CONDRADO M. VASQUEZ,
petitioner's condition remains unchanged for the next ten years. all of the Office of the Ombudsman; JESUS F. GUERRERO,
PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all
We recognized, in Valenzuela that a discussion of the victim's actual of the Office of the City Prosecutor, Manila, Respondents.
injury would not even scratch the surface of the resulting moral
damage because it would be highly speculative to estimate the ROMERO, J.:May this Court review the findings of the Office of
amount of emotional and moral pain, psychological damage and the Ombudsman? The general rule has been enunciated in Ocampo
injury suffered by the victim or those actually affected by the v. Ombudsman which states:
victim's condition. 84 The husband and the children, all petitioners
in this case, will have to live with the day to day uncertainty of the In the exercise of its investigative power, this Court has consistently
patient's illness, knowing any hope of recovery is close to nil. They held that courts will not interfere with the discretion of the fiscal or
have fashioned their daily lives around the nursing care of petitioner, the Ombudsman to determine the specificity and adequacy of the
altering their long term goals to take into account their life with a averments of the offense charged. He may dismiss the complaint
comatose patient. They, not the respondents, are charged with the forthwith if he finds it to be insufficient in form and substance or if
moral responsibility of the care of the victim. The family's moral he otherwise finds no ground to continue with the inquiry; or he may
injury and suffering in this case is clearly a real one. For the proceed with the investigation of the complaint if, in his view, it is in
foregoing reasons, an award of P2,000,000.00 in moral damages due and proper form.
would be appropriate.
Does the instant case warrant a departure from the foregoing general
Finally, by way of example, exemplary damages in the amount of rule? When a patient dies soon after surgery under circumstances
P100,000.00 are hereby awarded. Considering the length and nature which indicate that the attending surgeon and anaesthesiologist may
of the instant suit we are of the opinion that attorney's fees valued at have been guilty of negligence but upon their being charged, a series
P100,000.00 are likewise proper. of nine prosecutors toss the responsibility of conducting a
preliminary investigation to each other with contradictory
Our courts face unique difficulty in adjudicating medical negligence recommendations, ping-pong style, perhaps the distraught widow is
cases because physicians are not insurers of life and, they rarely set not to be blamed if she finally decides to accuse the City Prosecutors
out to intentionally cause injury or death to their patients. However, at the end of the line for partiality under the Anti-Graft and Corrupt
intent is immaterial in negligence cases because where negligence Practices Act. Nor may she be entirely faulted for finally filing a
exists and is proven, the same automatically gives the injured a right petition before this Court against the Ombudsman for grave abuse of
to reparation for the damage caused. discretion in dismissing her complaint against said City Prosecutors
on the ground of lack of evidence. Much as we sympathize with the
Established medical procedures and practices, though in constant bereaved widow, however, this Court is of the opinion that the
flux are devised for the purpose of preventing complications. A general rule still finds application in instant case. In other words, the
 P a g e | 101

respondent Ombudsman did not commit grave abuse of discretion in Guerrero, Macaraeg, and Arizala for manifest partiality in favor of
deciding against filing the necessary information against public Dr. Reyes before the Office of the Ombudsman. However, on July
respondents of the Office of the City Prosecutor. 11, 1994, the Ombudsman issued the assailed resolution dismissing
the complaint for lack of evidence.
The following facts are borne out by the records.
In fine, petitioner assails the exercise of the discretionary power of
Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, the Ombudsman to review the recommendations of the government
underwent surgical operation at the UST hospital for the removal of prosecutors and to approve and disapprove the same. Petitioner
a stone blocking his ureter. He was attended by Dr. Domingo faults the Ombudsman for, allegedly in grave abuse of discretion,
Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes refusing to find that there exists probable cause to hold public
was the anaesthesiologist. Six hours after the surgery, however, respondent City Prosecutors liable for violation of Section 3(e) of
Florencio died of complications of unknown cause, according to R.A. No. 3019.
officials of the UST Hospital. chanroblesvirtuallawlibrary
Preliminarily, the powers and functions of the Ombudsman have
Not satisfied with the findings of the hospital, petitioner requested generally been categorized into the following: investigatory powers,
the National Bureau of Investigation (NBI) to conduct an autopsy on prosecutory power, public assistance function, authority to inquire
her husbands body. Consequently, the NBI ruled that Florencios and obtain information, and function to adopt, institute and
death was due to lack of care by the attending physician in implement preventive measures. chanroblesvirtuallawlibrary
administering anaesthesia. Pursuant to its findings, the NBI
recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat- As protector of the people, the Office of the Ombudsman has the
Reyes be charged for Homicide through Reckless Imprudence before power, function and duty to act promptly on complaints filed in any
the Office of the City Prosecutor. form or manner against public officials and to investigate any act or
omission of any public official when such act or omission appears to
During the preliminary investigation, what transpired was a be illegal, unjust, improper or inefficient.
confounding series of events which we shall try to disentangle. The
case was initially assigned to Prosecutor Antonio M. Israel, who had While the Ombudsman has the full discretion to determine whether
to inhibit himself because he was related to the counsel of one of the or not a criminal case should be filed, this Court is not precluded
doctors. As a result, the case was re-raffled to Prosecutor Norberto from reviewing the Ombudsmans action when there is an abuse of
G. Leono who was, however, disqualified on motion of the petitioner discretion, in which case Rule 65 of the Rules of Court may
since he disregarded prevailing laws and jurisprudence regarding exceptionally be invoked pursuant to Section I, Article VIII of the
preliminary investigation. The case was then referred to Prosecutor 1987 Constitution. 6chanroblesvirtuallawlibrary
Ramon O. Carisma, who issued a resolution recommending that only
Dr. Reyes be held criminally liable and that the complaint against In this regard, grave abuse of discretion has been defined as where a
Dr. Antonio be dismissed. power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility so patent and gross as to amount to
The case took another perplexing turn when Assistant City evasion of positive duty or virtual refusal to perform a duty enjoined
Prosecutor Josefina Santos Sioson, in the interest of justice and by, or in contemplation of law. 7chanroblesvirtuallawlibrary
peace of mind of the parties, recommended that the case be re-
raffled on the ground that Prosecutor Carisma was partial to the From a procedural standpoint, it is certainly odd why the successive
petitioner. Thus, the case was transferred to Prosecutor Leoncia R. transfers from one prosecutor to another were not sufficiently
Dimagiba, where a volte face occurred again with the endorsement explained in the Resolution of the Ombudsman. Being the proper
that the complaint against Dr. Reyes be dismissed and instead, a investigating authority with respect to misfeasance, non-feasance
corresponding information be filed against Dr. Antonio. Petitioner and malfeasance of public officials, the Ombudsman should have
filed a motion for reconsideration, questioning the findings of been more vigilant and assiduous in determining the reasons behind
Prosecutor Dimagiba. the buckpassing to ensure that no irregularity took place.

Pending the resolution of petitioners motion for reconsideration Whether such transfers were due to any outside pressure or ulterior
regarding Prosecutor Dimagibas resolution, the investigative motive is a matter of evidence. One would have expected the
pingpong continued when the case was again assigned to another Ombudsman, however, to inquire into what could hardly qualify as
prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes standard operating procedure, given the surrounding circumstances
be included in the criminal information of Homicide through of the case.
Reckless Imprudence. While the recommendation of Prosecutor
Gualberto was pending, the case was transferred to Senior State While it is true that a preliminary investigation is essentially
Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. inquisitorial, and is often the only means to discover who may be
Reyes from any wrongdoing, a resolution which was approved by charged with a crime, its function is merely to determine the
both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus existence of probable cause. 8 Probable cause has been defined as the
F. Guerrero. existence of such fact and circumstances as would excite the belief,
in a reasonable mind, acting on the facts within the knowledge of the
Aggrieved, petitioner filed graft charges specifically for violation of prosecution, that the person charged was guilty of the crime for
Section 3(e) of Republic Act No. 3019 against Prosecutors which he was prosecuted.9chanroblesvirtuallawlibrary
 P a g e | 102

Probable cause is a reasonable ground of presumption that a matter Moreover, in malpractice or negligence cases involving the
is, or may be, well founded, such a state of facts in the mind of the administration of anaesthesia, the necessity of expert testimony and
prosecutor as would lead a person of ordinary caution and prudence the availability of the charge of res ipsa loquitur to the plaintiff,
to believe, or entertain an honest or strong suspicion, that a thing is have been applied in actions against anaesthesiologists to hold the
so. The term does not mean actual and positive cause nor does it defendant liable for the death or injury of a patient under excessive
import absolute certainty. It is merely based on opinion and or improper anaesthesia.16 Essentially, it requires two-pronged
reasonable belief. Thus, a finding of probable cause does not require evidence: evidence as to the recognized standards of the medical
an inquiry into whether there is sufficient evidence to procure a community in the particular kind of case, and a showing that the
conviction. It is enough that it is believed that the act or omission physician in question negligently departed from this standard in his
complained of constitutes the offense charged. Precisely, there is a treatment.17chanroblesvirtuallawlibrary
trial for the reception of evidence of the prosecution in support of the
charge.10chanroblesvirtuallawlibrary Another element in medical negligence cases is causation which is
divided into two inquiries: whether the doctors actions in fact caused
In the instant case, no less than the NBI pronounced after conducting the harm to the patient and whether these were the proximate cause
an autopsy that there was indeed negligence on the part of the of the patients injury. Indeed here, a causal connection is discernible
attending physicians in administering the anaesthesia. 11 The fact of from the occurrence of the victims death after the negligent act of
want of competence or diligence is evidentiary in nature, the veracity the anaesthesiologist in administering the anesthesia, a fact which, if
of which can best be passed upon after a full-blown trial for it is confirmed, should warrant the filing of the appropriate criminal case.
virtually impossible to ascertain the merits of a medical negligence To be sure, the allegation of negligence is not entirely baseless.
case without extensive investigation, research, evaluation and Moreover, the NBI deduced that the attending surgeons did not
consultations with medical experts. Clearly, the City Prosecutors are conduct the necessary interview of the patient prior to the operation.
not in a competent position to pass judgment on such a technical It appears that the cause of the death of the victim could have been
matter, especially when there are conflicting evidence and findings. averted had the proper drug been applied to cope with the symptoms
The bases of a partys accusation and defenses are better ventilated at of malignant hyperthermia. Also, we cannot ignore the fact that an
the trial proper than at the preliminary investigation. antidote was readily available to counteract whatever deleterious
effect the anaesthesia might produce. 19 Why these precautionary
A word on medical malpractice or negligence cases. measures were disregarded must be sufficiently explained.

In its simplest terms, the type of lawsuit which has been called The City Prosecutors were charged with violating Section 3(e) of the
medical malpractice or, more appropriately, medical negligence, is Anti-Graft and Corrupt Practices Act which requires the following
that type of claim which a victim has available to him or her to facts:
redress a wrong committed by a medical professional which has
caused bodily harm. 1. The accused is a public officer discharging administrative or
official functions or private persons charged in conspiracy with
In order to successfully pursue such a claim, a patient must prove them;
that a health care provider, in most cases a physician, either failed to
do something which a reasonably prudent health care provider would 2. The public officer committed the prohibited act during the
have done, or that he or she did something that a reasonably prudent performance of his official duty or in relation to his public position;
provider would not have done; and that that failure or action caused
injury to the patient.12chanroblesvirtuallawlibrary 3. The public officer acted with manifest partiality, evident bad faith
or gross, inexcusable negligence; and
Hence, there are four elements involved in medical negligence cases:
duty, breach, injury and proximate causation. 4. His action caused undue injury to the Government or any private
party, or gave any party any unwarranted benefit, advantage or
Evidently, when the victim employed the services of Dr. Antonio preference to such parties. 20chanroblesvirtuallawlibrary
and Dr. Reyes, a physician-patient relationship was created. In
accepting the case, Dr. Antonio and Dr. Reyes in effect represented Why did the complainant, petitioner in instant case, elect to charge
that, having the needed training and skill possessed by physicians respondents under the above law?
and surgeons practicing in the same field, they will employ such
training, care and skill in the treatment of their patients.13 They have While a party who feels himself aggrieved is at liberty to choose the
a duty to use at least the same level of care that any other reasonably appropriate weapon from the armory, it is with no little surprise that
competent doctor would use to treat a condition under the same this Court views the choice made by the complainant widow.
circumstances. The breach of these professional duties of skill and
care, or their improper performance, by a physician surgeon whereby
the patient is injured in body or in health, constitutes actionable To our mind, the better and more logical remedy under the
14
malpractice. Consequently, in the event that any injury results to circumstances would have been to appeal the resolution of the City
the patient from want of due care or skill during the operation, the Prosecutors dismissing the criminal complaint to the Secretary of
surgeons may be held answerable in damages for Justice under the Department of Justices Order No. 223, 21 otherwise
15
negligence. chanroblesvirtuallawlibrary known as the 1993 Revised Rules on Appeals From Resolutions In
Preliminary Investigations/Reinvestigations, as amended by
Department Order No. 359, Section 1 of which provides:
 P a g e | 103

Section 1. What May Be Appealed. - Only resolutions of the Chief Dr. Batiquin was a Resident Physician at the
State Prosecutor/Regional State Prosecutor/Provincial or City Negros Oriental Provincial Hospital, Dumaguete
Prosecutor dismissing a criminal complaint may be the subject of an City from January 9, 1978 to September 1989.
appeal to the Secretary of Justice except as otherwise provided in Between 1987 and September, 1989 she was also
Section 4 hereof. the Actg. Head of the Department of Obstetrics
and Gynecology at the said Hospital.
What action may the Secretary of Justice take on the appeal? Section
9 of Order No. 223 states: The Secretary of Justice may reverse, Mrs. Villegas is a married woman who submitted
affirm or modify the appealed resolution. On the other hand, He may to Dr. Batiquin for prenatal care as the latter's
motu proprio or on motion of the appellee, dismiss outright the private patient sometime before September 21,
appeal on specified grounds. 22chanroblesvirtuallawlibrary 1988.

In exercising his discretion under the circumstances, the In the morning of September 21, 1988 Dr.
Ombudsman acted within his power and authority in dismissing the Batiquin, with the assistance of Dr. Doris Teresita
complaint against the Prosecutors and this Court will not interfere Sy who was also a Resident Physician at the same
with the same. Hospital, C.I. and O.R. Nurse Arlene Diones and
some student nurses performed a simple caesarean
WHEREFORE, in view of the foregoing, the instant petition is section on Mrs. Villegas at the Negros Oriental
DISMISSED, without prejudice to the filing of an appeal by the Provincial Hospital and after 45 minutes Mrs.
petitioner with the Secretary of Justice assailing the dismissal of her Villegas delivered her first child, Rachel Acogido,
criminal complaint by the respondent City Prosecutors. No costs.SO at about 11:45 that morning. Thereafter, Plaintiff
ORDERED. remained confined at the Hospital until September
27, 1988 during which period of confinement she
G.R. No. 118231 July 5, 1996 was regularly visited by Dr. Batiquin. On
September 28, 1988 Mrs. Villegas checked out of
the Hospital. . . and on that same day she paid Dr.
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, Batiquin, thru the latter's secretary, the amount of
petitioners, P1,500.00 as "professional fee". . . .
vs.COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO
and FLOTILDE G. VILLEGAS, respondents.
Soon after leaving the Hospital Mrs. Villegas
began to suffer abdominal pains and complained
 DAVIDE, JR., J.:p Throughout history, patients have consigned of being feverish. She also gradually lost her
their fates and lives to the skill of their doctors. For a breach of this appetite, so she consulted Dr. Batiquin at the
trust, men have been quick to demand retribution. Some 4,000 years latter's polyclinic who prescribed for her certain
ago, the Code of Hammurabi1 then already provided: "If a physician medicines. . . which she had been taking up to
make a deep incision upon a man with his bronze lancet and cause December, 1988.
the man's death, or operate on the eye socket of a man with his
bronze lancet and destroy the man's eyes, they shall cut off his
hand." 2 Subsequently, Hippocrates3 wrote what was to become part In the meantime, Mrs. Villegas was given a
of the healer's oath: "I will follow that method of treatment which Medical Certificate by Dr. Batiquin on October 31,
according to my ability and judgment, I consider for the benefit of 1988. . . certifying to her physical fitness to return
my patients, and abstain from whatever is deleterious and to her work on November 7, 1988. So, on the
mischievous. . . . While I continue to keep this oath unviolated may second week of November, 1988 Mrs. Villegas
it be granted me to enjoy life and practice the art, respected by all returned to her work at the Rural Bank of
men at all times but should I trespass and violate this oath, may the Ayungon, Negros Oriental.
reverse be my lot." At present, the primary objective of the medical
profession if the preservation of life and maintenance of the health of The abdominal pains and fever kept on recurring
the people.4 and bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When
Needless to say then, when a physician strays from his sacred duty the pains became unbearable and she was rapidly
and endangers instead the life of his patient, he must be made to losing weight she consulted Dr. Ma. Salud Kho at
answer therefor. Although society today cannot and will not tolerate the Holy Child's Hospital in Dumaguete City on
the punishment meted out by the ancients, neither will it and this January 20, 1989.
Court, as this case would show, let the act go uncondemned.
The evidence of Plaintiffs show that when Dr. Ma.
The petitioners appeal from the decision5 of the Court of Appeals of Salud Kho examined Mrs. Villegas at the Holy
11 May 1994 in CA-G.R. CV No. 30851, which reversed the Child's Hospital on January 20, 1989 she found
decision6 of 21 December 1990 of Branch 30 of the Regional Trial Mrs. Villegas to be feverish, pale and was
Court (RTC) of Negros Oriental in Civil Case No. 9492. breathing fast. Upon examination she felt an
abdominal mass one finger below the umbilicus
which she suspected to be either a tumor of the
The facts, as found by the trial court, are as follows: uterus or an ovarian cyst, either of which could be
 P a g e | 104

cancerous. She had an x-ray taken of Mrs. it was sent to the Pathologist in Cebu as testified to
Villegas' chest, abdomen and kidney. She also in Court by Dr. Kho and (2) that Dr. Kho threw it
took blood tests of Plaintiff. A blood count showed away as told by her to Defendant. The failure of
that Mrs. Villegas had [an] infection inside her the Plaintiffs to reconcile these two different
abdominal cavity. The results of all those versions serve only to weaken their claim against
examinations impelled Dr. Kho to suggest that Defendant Batiquin.19
Mrs. Villegas submit to another surgery to which
the latter agreed. All told, the trial court held in favor of the petitioners herein.

When Dr. Kho opened the abdomen of Mrs. The Court of Appeals reviewed the entirety of Dr. Kho's testimony
Villegas she found whitish-yellow discharge and, even without admitting the private respondents' documentary
inside, an ovarian cyst on each of the left and right evidence, deemed Dr. Kho's positive testimony to definitely
ovaries which gave out pus, dirt and pus behind establish that a piece of rubber was found near private respondent
the uterus, and a piece of rubber material on the Villegas's uterus. Thus, the Court of Appeals reversed the decision
right side of the uterus embedded on [sic] the of the trial court, holding:
ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described 4. The fault or negligence of appellee Dr. Batiquin
as a "foreign body" looked like a piece of a is established by preponderance of evidence. The
"rubber glove". . . and which is [sic] also "rubber- trial court itself had narrated what happened to
drain like". . . . It could have been a torn section of appellant Flotilde after the caesarean operation
a surgeon's gloves or could have come from other made by appellee doctor. . . . After the second
sources. And this foreign body was the cause of operation, appellant Flotilde became well and
the infection of the ovaries and consequently of all healthy. Appellant Flotilde's troubles were caused
the discomfort suffered by Mrs. Villegas after her by the infection due to the "rubber" that was left
delivery on September 21, 1988.7 inside her abdomen. Both appellant; testified that
after the operation made by appellee doctor, they
The piece of rubber allegedly found near private respondent Flotilde did not go to any other doctor until they finally
Villegas's uterus was not presented in court, and although Dr. Ma. decided to see another doctor in January, 1989
Salud Kho Testified that she sent it to a pathologist in Cebu City for when she was not getting any better under the care
examination,8 it was not mentioned in the pathologist's Surgical of appellee Dr. Batiquin. . . . Appellee Dr.
Pathology Report.9 Batiquin admitted on the witness stand that she
alone decided when to close the operating area;
Aside from Dr. Kho's testimony, the evidence which mentioned the that she examined the portion she operated on
piece of rubber are a Medical Certificate,10 a Progress Record,11 an before closing the same. . . Had she exercised due
Anesthesia Record,12 a Nurse's Record,13 and a Physician's diligence, appellee Dr. Batiquin would have found
Discharge Summary.14 The trial court, however, regarded these the rubber and removed it before closing the
documentary evidence as mere hearsay, "there being no showing that operating area.20
the person or persons who prepared them are deceased or unable to
testify on the facts therein stated. . . . Except for the Medical The appellate court then ruled:
Certificate (Exhibit "F"), all the above documents were allegedly
prepared by persons other than Dr. Kho, and she merely affixed her Appellants' evidence show[s] that they paid a total
signature on some of them to express her agreement thereto. . . ."15 of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A)
The trial court also refused to give weight to Dr. Kho's testimony plus hospital and medical expenses together with
regarding the subject piece of rubber as Dr. Kho "may not have had doctor's fees in the total amount P9,900.00 (Exhs.
first-hand knowledge" thereof,16 as could be gleaned from her G and G-2)] for the second operation that saved
statement, thus: her life.

A . . . I have heard somebody For the miseries appellants endured for more than
that [sic] says [sic] there is [sic] three (3) months, due to the negligence of appellee
a foreign body that goes with the Dr. Batiquin they are entitled to moral damages in
tissues but unluckily I don't the amount of P100,000.00; exemplary damages in
know where the rubber was. 17 the amount of P20,000.00 and attorney's fees in
the amount of P25,000.00.
The trial court deemed vital Dr. Victoria Batiquin's testimony that
when she confronted Dr. Kho regarding the piece of rubber, "Dr. The fact that appellant Flotilde can no longer bear
Kho answered that there was rubber indeed but that she threw it children because her uterus and ovaries were
away."18 This statement, the trial court noted, was never denied nor removed by Dr. Kho is not taken into
disputed by Dr. Kho, leading it to conclude: consideration as it is not shown that the removal of
said organs were the direct result of the rubber left
There are now two different versions on the by appellee Dr. Batiquin near the uterus. What is
whereabouts of that offending "rubber" — (1) that
 P a g e | 105

established is that the rubber left by appellee considered the other portions of Dr. Kho's testimony,
caused infection, placed the life of appellant especially the following:
Flotilde in jeopardy and caused appellant fear,
worry and anxiety. . . . Q So you did actually conduct
the operation on her?
WHEREFORE, the appealed judgment, dismissing
the complaint for damages is REVERSED and A Yes, I did.
SET ASIDE. Another judgment is hereby entered
ordering defendants-appellees to pay plaintiffs- Q And what was the result?
appellants the amounts of P17,000.00 as and for
actual damages; P100,000.00 as and for moral
damages; P20,000.00 as and for exemplary A Opening up her abdomen,
damages; and P25,000.00 as and for attorney's fees there was whitish-yellow
plus the costs of litigation. discharge inside the abdomen,
there was an ovarian cyst on the
left and side and there was also
SO ORDERED.21 an ovarian cyst on the right
which, on opening up or freeing
From the above judgment, the petitioners appealed to this Court it up from the uterus, turned out
claiming that the appellate court: (1) committed grave abuse of to be pus. Both ovaries turned
discretion by resorting to findings of fact not supported by the out. . . to have pus. And then,
evidence on record, and (2) exceeded its discretion, amounting to cleaning up the uterus, at the
lack or excess of jurisdiction, when it gave credence to testimonies back of the uterus it was very
punctured with contradictions and falsities. dirty, it was full of pus. And
there was a [piece of] rubber, we
The private respondents commented that the petition raised only found a [piece of] rubber on the
questions of fact, which were not proper for review by this Court. right
side. 24
While the rule is that only questions of law may be raised in a
petition for review on certiorari, there are exceptions, among which We agree with the Court of Appeals. The phrase relied upon by the
are when the factual findings of the trial court and the appellate court trial court does not negate the fact that Dr. Kho saw a piece of rubber
conflict, when the appealed decision is clearly contradicted by the in private respondent Villegas's abdomen, and that she sent it to a
evidence on record, or when the appellate court misapprehended the laboratory and then to Cebu City for examination by a pathologist.25
facts.22 Not even the Pathologist's Report, although devoid of any mention
of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr.
After deciphering the cryptic petition, we find that the focal point of Kho's knowledge of the piece of rubber could not be based on other
the instant appeal is the appreciation of Dr. Kho's testimony. The than first-hand knowledge for, as she asserted before the trial court:
petitioners contend that the Court of Appeals misappreciated the
following portion of Dr. Kho's testimony: Q But you are sure you have
seen [the piece of rubber]?
Q What is the purpose of the
examination? A Oh yes. I was not the only one
who saw it. 26
A Just in case, I was just
thinking at the back of my mind, The petitioners emphasize that the private respondents never
just in case this would turn out reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the
to be a medico-legal case, I have witness stand that when Dr. Batiquin confronted Dr. Kho about the
heard somebody that [sic] says foreign body, the latter said that there was a piece of rubber but that
[sic] there is [sic] a foreign bodyshe threw it away. Although hearsay, Dr. Batiquin's claim was not
that goes with the tissues but objected to, and hence, the same is admissible27 but it carries no
unluckily I don't know where the probative value.28 Nevertheless, assuming otherwise, Dr. Batiquin's
rubber was. It was not in the statement cannot belie the fact that Dr. Kho found a piece of rubber
Lab, it was not in Cebu. 23 near private respondent Villegas's uterus. And even if we were to
(emphasis supplied) doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether
she threw it away or sent it to Cebu City, we are not justified in
The petitioners prefer the trial court's interpretation of the distrusting her as to her recovery of a piece of rubber from private
above testimony, i.e., that Dr. Kho's knowledge of the piece respondent Villegas's abdomen. On this score, it is perfectly
of rubber was based on hearsay. The Court of Appeals, on reasonable to believe the testimony of a witness with respect to some
the other hand, concluded that the underscored phrase was facts and disbelieve his testimony with respect to other facts. And it
taken out of context by the trial court. According to the has been aptly said that even when a witness is found to have
Court of Appeals, the trial court should have likewise deliberately falsified in some material particulars, it is not required
 P a g e | 106

that the whole of his uncorroborated testimony be rejected, but such was in defendant's exclusive
portions thereof deemed worthy of belief may be credited.29 control, and that the accident
was one which ordinary does not
It is here worth noting that the trial court paid heed to the following happen in absence of negligence.
portions of Dr. Batiquin's testimony: that no rubber drain was used Res ipsa loquitur is [a] rule of
in the operation,30 and that there was neither any tear on Dr. evidence whereby negligence of
Batiquin's gloves after the operation nor blood smears on her hands [the] alleged wrongdoer may be
upon removing her gloves.31 Moreover, the trial court pointed out inferred from [the] mere fact that
that the absence of a rubber drain was corroborated by Dr. Doris Sy, [the] accident happened
Dr. Batiquin's assistant during the operation on private respondent provided [the] character of [the]
Villegas.32 But the trial court failed to recognize that the assertions accident and circumstances
of Drs. Batiquin and Sy were denials or negative testimonies. Well- attending it lead reasonably to
settled is the rule that positive testimony is stronger than negative belief that in [the] absence of
testimony.33 Of course, as the petitioners advocate, such positive negligence it would not have
testimony must come from a credible source, which leads us to the occurred and that thing which
second assigned error. caused injury is shown to have
been under [the] management
While the petitioners claim that contradictions and falsities and control of [the] alleged
punctured Dr. Kho's testimony, a regarding of the said testimony wrongdoer. . . . Under [this]
reveals no such infirmity and establishes Dr. Kho as a credible doctrine
witness. Dr. Kho was frank throughout her turn on the witness stand. . . . the happening of an injury
Furthermore, no motive to state any untruth was ever imputed permits an inference of
against Dr. Kho, leaving her trustworthiness unimpaired.34 The trial negligence where plaintiff
court's following declaration shows that while it was critical of the produces substantial evidence
lack of care with which Dr. Kho handled the piece of rubber, it was that [the] injury was caused by
not prepared to doubt Dr. Kho's credibility, thus only supporting our an agency or instrumentality
appraisal of Dr. Kho's trustworthiness: under [the] exclusive control and
management of defendant, and
that the occurrence [sic] was
This is not to say that she was less than honest such that in the ordinary course
when she testified about her findings, but it can of things would not happen if
also be said that she did not take the most reasonable care had been used.
appropriate precaution to preserve that "piece of
rubber" as an eloquent evidence of what she would
reveal should there be a "legal problem" which she x x x           x x x          x x x
claim[s] to have anticipated.35
The doctrine of [r]es ipsa
Considering that we have assessed Dr. Kho to be a credible witness, loquitur as a rule of evidence is
her positive testimony [that a piece of rubber was indeed found in peculiar to the law of negligence
private respondent Villega's abdomen] prevails over the negative which recognizes that prima
testimony in favor of the petitioners. facie negligence may be
established without direct proof
and furnishes a substitute for
As such, the rule of res ipsa loquitur comes to fore. This Court has specific proof of negligence. The
had occasion to delve into the nature and operation of this doctrine: doctrine is not a rule of
substantive law, but merely a
This doctrine [res ipsa loquitur] is stated thus: mode of proof or a mere
"Where the thing which causes injury is shown to procedural convenience. The
be under the management of the defendant, and the rule, when applicable to the facts
accident is such as in the ordinary course of things and circumstances of a particular
does not happen in those who have the case, is not intended to and does
management use proper care, it affords reasonable not dispense with the
evidence, in the absence of an explanation by the requirement of proof of culpable
defendant, that the accident arose from want of negligence on the party charged.
care." Or as Black's Law Dictionary puts it: It merely determines and
regulates what shall be prima
Res ipsa loquitur. The thing facie evidence thereof and
speaks for itself. Rebuctable facilitates the burden of plaintiff
presumption or inference that of proving a breach of the duty
defendant was negligent, which of due care. The doctrine can be
arises upon proof that [the] invoked when and only when,
instrumentality causing injury under the circumstances
involved, direct evidence is
 P a g e | 107

absent and not readily DEATH. — When a vehicle turned not only on its side but
available.36 completely on its back, the leaking of the gasoline from the tank was
not unnatural or unexpected; that the coming of the men with the
In the instant case, all the requisites for recourse to the doctrine are lighted torch was in response to the call for help, made not only by
present. First, the entire proceedings of the caesarean section were the passengers, but most probably by the driver and the conductor
under the exclusive control of Dr. Batiquin. In this light, the private themselves, and that because it was very dark (about 2:30 in the
respondents were bereft of direct evidence as to the actual culprit or morning), the rescuers had to carry a light with them; and coming as
the exact cause of the foreign object finding its way into private they did from a rural area where the lanterns and flashlights were not
respondent Villegas's body, which, needless to say, does not occur available, they had to use a torch the most handy and available; and
unless through the intersection of negligence. Second, since aside what was more natural, that said rescuers should innocently
from the caesarean section, private respondent Villegas underwent approached the overtuned vehicle to extend the aid and effect the
no other operation which could have caused the offending piece of rescue requested from them. Held: That the proximate cause of the
rubber to appear in her uterus, it stands to reason that such could death of B was overturning of the vehicle thru the negligence of
only have been a by-product of the caesarean section performed by defendant and his agent.
Dr. Batiquin. The petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the doctrine of res 3. ID.; ID.; CARRIER’S NEGLIGENCE; BURNING OF THE
ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving BUS. — The burning of the bus wherein some of the passengers
behind a piece of rubber in private respondent Villegas's abdomen were trapped can also be attributed to the negligence of the carrier,
and for all the adverse effects thereof. through the driver and conductor who were on the road walking back
and forth. They should and must have known that in the position in
As a final word, this Court reiterates its recognition of the vital role which the overtuned bus was, gasoline could and must have leaked
the medical profession plays in the lives of the people,3 7 and the from the gasoline tank and soaked the area in and around the bus,
State's compelling interest to enact measures to protect the public this aside from the fact that gasoline when spilled, especially over a
from "the potentially deadly effects of incompetence and ignorance large area, can be smelt and detected even from a distance, Held:
in those who would undertake to treat our bodies and minds for That the failure of the driver and the conductor to have cautioned or
disease or trauma."38 Indeed, a physician is bound to serve the taken steps to warn the rescuers not to bring the lighted torch too
interest of his patients "with the greatest of solicitude, giving them near the bus, constitute negligence on the part of the agents of the
always his best talent and skill."39 Through her tortious conduct, the carrier under the provisions of the Civil Code, particularly, Article
petitioner endangered the life of Flotilde Villegas, in violation of her 1733, 1759 and 1763 thereof.
profession's rigid ethical code and in contravention of the legal MONTEMAYOR, J.Shortly after midnight, on September 13,
standards set forth for professionals, in general,40 and members of 1952, bus No. 30 of the Medina Transportation, operated by its
the medical profession,41 in particular. owner, defendant Mariano Medina, under a certificate of public
convenience, left the town of Amadeo, Cavite, on its way to Pasay
City, driven by its regular chauffeur, Conrado Saylon. There were
WHEREFORE, the challenged decision of 11 May 1994 of the about eighteen passengers, including the driver and conductor.
Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED Among the passengers were Juan Bataclan, seated beside and to the
in toto. Costs against the petitioners.SO ORDERED. right of the driver, Felipe Lara, seated to the right of Bataclan,
another passenger apparently from the Visayan Islands whom the
witnesses just called Visaya, apparently not knowing his name,
[G.R. No. L-10126. October 22, 1957.] seated on the left side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned. At about 2 :
SALUD VILLANUEVA VDA. DE BATACLAN and the minors 00 o’clock that same morning, while the bus was running within the
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO jurisdiction of Imus, Cavite, one of the front tires burst and the
BATACLAN, represented by their Natural guardian, SALUD vehicle began to zig-zag until it fell into a canal or ditch on the right
VILLANUEVA VDA. DE BATACLAN, Plaintiffs-Appellants, v. side of the road and turned turtle. Some of the passengers managed
MARIANO MEDINA, Defendant-Appellant. to leave the bus the best way they could, others had to be helped or
pulled out, while the three passengers seated beside the driver,
named Bataclan, Lara and the Visayan and the woman behind them
1. DAMAGES; CARRIER’S LIABILITY; WORDS AND named Natalia Villanueva, could not get out of the overturned bus.
PHRASES; PROXIMATE CAUSE DEFINED. — "The proximate Some of the passengers, after they had clambered up to the road,
legal cause is that the acting first and producing the injury, either heard groans and moans from inside the bus, particularly, shouts for
immediately or by setting other events in motion., all constituting a help from Bataclan and Lara, who said that they could not get out of
natural and continuous chain of events, each having a close causal the bus. There, is nothing in the evidence to show whether or not the
connection with its immediate predecessor, the final event in the passengers already free from the wreck, including the driver and the
chain immediately affecting the injury as a natural and probable conductor, made any attempt to pull out or extricate and rescue the
result of the cause which first acted, under such circumstances that four passengers trapped inside the vehicle, but calls or shouts for
the person responsible for the first event should, as ordinarily help were made to the houses in the neighborhood. After half an
prudent and intelligent person, have reasonable ground to expect at hour, came about ten men, one of them carrying a lighted torch made
the moment of his act or default that an injury to some person might of bamboo with a wick on one end, evidently fueled with petroleum.
be probably result therefrom."cralaw virtua1aw library These men presumably approached the overturned bus, and almost
immediately, a fierce fire started, burning and all but consuming the
2. ID.; ID.; OVERTURNING OF BUS; PROXIMATE CAUSE OF bus, including the four passengers trapped inside it. It would appear
 P a g e | 108

that as the bus overturned, gasoline began to leak and escape from could have prevented or stopped the act or omission."cralaw
the gasoline tank on the side of the chassis, spreading over and virtua1aw library
permeating the body of the bus and the ground under and around it,
and that the lighted torch brought by one of the men who answered We agree with the trial court that the case involves a breach of
the call for help set it on fire. contract of transportation for hire, the Medina Transportation having
undertaken to carry Bataclan safely to his destination, Pasay City.
That same day, the charred bodies of the four doomed passengers We also agree with the trial court that there was negligence on the
inside the bus were removed and duly identified, specially that of part of the defendant, through his agent, the driver Saylon. There is
Juan Bataclan. By reason of his death, his widow, Salud Villanueva, evidence to show that at the time of the blow out, the bus was
in her name and in behalf of her five minor children, brought the speeding, as testified to by one of the passengers, and as shown by
present suit to recover from Mariano Medina compensatory, moral, the fact that according to the testimony of the witnesses, including
and exemplary damages and attorney’s fees in the total amount of that of the defense, from the point where one of the front tires burst
P87,150. After trial, the Court of First Instance of Cavite awarded up to the canal where the bus overturned after zig-zagging, there was
P1,000 to the plaintiffs, plus P600 as attorney’s fee, plus P100, the a distance of about 150 meters. The chauffeur, after the blow-out,
value of the merchandise being carried by Bataclan to Pasay City for must have applied the brakes in order to stop the bus, but because of
sale and which was lost in the fire. The plaintiffs and the defendants the velocity at which the bus must have been running, its momentum
appealed the decision to the Court of Appeals, but the latter court carried it over a distance of 150 meters before it fell into the canal
endorsed the appeal to us because of the value involved in the claim and turned turtle.
in the complaint.
There is no question that under the circumstances, the defendant
Our New Civil Code amply provides for the responsibility of a carrier is liable. The only question is to what degree. The trial court
common carrier to its passengers and their goods. For purposes of was of the opinion that the proximate cause of the death of Bataclan
reference, we are reproducing the pertinent codal was not the overturning of the bus, but rather, the fire that burned the
provisions:jgc:chanrobles.com.ph bus, including himself and his co-passengers who were unable to
leave it; that at the time the fire started, Bataclan, though he must
"ART. 1733. Common carriers, from the nature of their business and have suffered physical injuries, perhaps serious, was still alive, and
for reasons of public policy, are bound to observe extraordinary so damages were awarded, not for his death, but for the physical
diligence in the vigilance over the goods and for the safety of the injuries suffered by him. We disagree. A satisfactory definition of
passengers transported by them, according to all the circumstances proximate cause is found in Volume 38, pages 695-696 of American
of each case. Jurisprudence, cited by plaintiffs-appellants in their brief. It is as
follows:jgc:chanrobles.com.ph
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7 ". . .’that cause, which, in natural and continuous sequence,
while the extraordinary diligence for the safety of the passengers is unbroken by any efficient intervening cause, produces the injury,
further set forth in articles 1755 and 1756."cralaw virtua1aw library and without which the result would not have occurred.’ And more
comprehensively, ‘the proximate legal cause is that acting first and
"ART. 1755. A common carrier is bound to carry the passengers producing the injury, either immediately or by setting other events in
safely as far as human care and foresight can provide, using the motion, all constituting a natural and continuous chain of events,
utmost diligence of very cautious persons, with a due regard for all each having a close causal connection with its immediate
the circumstances."cralaw virtua1aw library predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted,
"ART. 1756. In case of death of or injuries to passengers, common under such circumstances that the person responsible for the first
carriers are presumed to have been at fault or to have acted event should, as an ordinarily prudent and intelligent person, have
negligently, unless they prove that they observed extraordinary reasonable ground to expect at the moment of his act or default that
diligence as prescribed in articles 1733 and 1755."cralaw virtua1aw an injury to some person might probably result therefrom."cralaw
library virtua1aw library

"ART. 1759. Common carriers are liable for the death of or injuries It may be that ordinarily, when a passenger bus overturns, and pins
to passengers through the negligence or wilful acts of the former’s down a passenger, merely causing him physical injuries, if through
employees, although such employees may have acted beyond the some event, unexpected and extraordinary, the overturned bus is set
scope of their authority or in violation of the orders of the common on fire, say, by lightning, or if some highwaymen after looting the
carriers. vehicle sets it on fire, and the passenger is burned to death, one
might still contend that the proximate cause of his death was the fire
This liability of the common carriers does not cease upon proof that and not the overturning of the vehicle. But in the present case and
they exercised all the diligence of a good father of a family in the under the circumstances obtaining in the same, we do not hesitate to
selection and supervision of their employees."cralaw virtua1aw hold that the proximate cause of the death of Bataclan was the
library overturning of the bus, this for the reason that when the vehicle
turned not only on its side but completely on its back, the leaking of
"ART. 1763. A common carrier is responsible for injuries suffered the gasoline from the tank was not unnatural or unexpected; that the
by a passenger on account of the wilful acts or negligence of other coming of the men with a lighted torch was in response to the call
passengers or of strangers, if the common carrier’s employees for help, made not only by the passengers, but most probably, by the
through the exercise of the diligence of a good father of a family driver and the conductor themselves, and that because it was very
 P a g e | 109

dark (about 2:30 in the morning), the rescuers had to carry a light should be pursued, this, not only as a matter of justice, but for the
with them; and coming as they did from a rural area where lanterns promotion of the safety of passengers on public utility buses. Let a
and flashlights were not available, they had to use a torch, the most copy of this decision be furnished the Department of Justice and the
handy and available; and what was more natural than that said Provincial Fiscal of Cavite.
rescuers should innocently approach the overturned vehicle to
extend the aid and effect the rescue requested from them. In other In view of the foregoing, with the modification that the damages
words, the coming of the men with the torch was to be expected and awarded by the trial court are increased from ONE THOUSAND
was a natural sequence of the overturning of the bus, the trapping of (P1,000) PESOS to SIX THOUSAND (P6,000) PESOS, and from
some of its passengers and the call for outside help. What is more, SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS,
the burning of the bus can also in part be attributed to the negligence for the death of Bataclan and for attorney’s fees, respectively, the
of the carrier, through its driver and its conductor. According to the decision appealed from is hereby affirmed, with costs.
witnesses, the driver and the conductor were on the road walking
back and forth. They, or at least, the driver should and must have G.R. No. 168512             March 20, 2007
known that in the position in which the overturned bus was, gasoline
could and must have leaked from the gasoline tank and soaked the ORLANDO D. GARCIA, JR., doing business under the name
area in and around the bus, this aside from the fact that gasoline and style COMMUNITY DIAGNOSTIC CENTER and BU
when spilled, specially over a large area, can be smelt and detected CASTRO,1 Petitioners,
even from a distance, and yet neither the driver nor the conductor vs.
would appear to have cautioned or taken steps to warn the rescuers RANIDA D. SALVADOR and RAMON SALVADOR,
not to bring the lighted torch too near the bus. Said negligence on the Respondents.
part of the agents of the carrier come under the codal provisions
above- reproduced, particularly, Articles 1733, 1759 and 1763.
DECISION
As regards the damages to which plaintiffs are entitled, considering
the earning capacity of the deceased, as well as the other elements YNARES-SANTIAGO, J.:
entering into a damage award, we are satisfied that the amount of
SIX THOUSAND (P6,000) PESOS would constitute satisfactory This is a petition for review2 under Rule 45 of the Rules of Court
compensation, this to include compensatory, moral, and other assailing the February 27, 2004 Decision3 of the Court of Appeals in
damages. We also believe that plaintiffs are entitled to attorney’s CA-G.R. CV No. 58668 finding petitioner Orlando D. Garcia liable
fees, and assessing the legal services rendered by plaintiffs’ for gross negligence; and its June 16, 2005 Resolution4 denying
attorneys not only in the trial court, but also in the course of the petitioner’s motion for reconsideration.
appeal, and not losing sight of the able briefs prepared by them, the
attorney’s fees may well be fixed at EIGHT HUNDRED (P800) On October 1, 1993, respondent Ranida D. Salvador started working
PESOS. The award made by the trial court of ONE HUNDRED as a trainee in the Accounting Department of Limay Bulk Handling
(P100) PESOS for the loss of the merchandise carried by the Terminal, Inc. (the Company). As a prerequisite for regular
deceased in the bus, is adequate and will not be disturbed. employment, she underwent a medical examination at the
Community Diagnostic Center (CDC). Garcia who is a medical
There is one phase of this case which disturbs if it does not shock us. technologist, conducted the HBs Ag (Hepatitis B Surface Antigen)
According to the evidence, one of the passengers who, because of test and on October 22, 1993, CDC issued the test result5 indicating
the injuries suffered by her, was hospitalized, and while in the that Ranida was "HBs Ag: Reactive." The result bore the name and
hospital, she was visited by the defendant Mariano Medina, and in signature of Garcia as examiner and the rubber stamp signature of
the course of his visit, she overheard him speaking to one of his bus Castro as pathologist.
inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of
When Ranida submitted the test result to Dr. Sto. Domingo, the
fact, he had been telling the driver to change the said tires, but that
Company physician, the latter apprised her that the findings
the driver did not follow his instructions. If this be true, it goes to
indicated that she is suffering from Hepatitis B, a liver disease. Thus,
prove that the driver had not been diligent and had not taken the
based on the medical report6 submitted by Sto. Domingo, the
necessary precautions to insure the safety of his passengers. Had he
Company terminated Ranida’s employment for failing the physical
changed the tires, specially those in front, with new ones, as he had
examination.7
been instructed to do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred. All in all,
there is reason to believe that the driver operated and drove his When Ranida informed her father, Ramon, about her ailment, the
vehicle negligently, resulting in the death of four of his passengers, latter suffered a heart attack and was confined at the Bataan Doctors
physical injuries to others, and the complete loss and destruction of Hospital. During Ramon’s confinement, Ranida underwent another
their goods, and yet the criminal case against him, on motion of the HBs Ag test at the said hospital and the result8 indicated that she is
fiscal and with his consent, was provisionally dismissed, because non-reactive. She informed Sto. Domingo of this development but
according to the fiscal, the witnesses on whose testimony he was was told that the test conducted by CDC was more reliable because
banking to support the complaint, either failed to appear or were it used the Micro-Elisa Method.
reluctant to testify. But the record of the case before us shows that
several witnesses, passengers in that bus, willingly and Thus, Ranida went back to CDC for confirmatory testing, and this
unhesitatingly testified in court to the effect that the said driver was time, the Anti-HBs test conducted on her indicated a "Negative"
negligent. In the public interest, the prosecution of said erring driver result.9
 P a g e | 110

Ranida also underwent another HBs Ag test at the Bataan Doctors After the denial of his motion for reconsideration, Garcia filed the
Hospital using the Micro-Elisa Method. The result indicated that she instant petition.
was non-reactive.10
The main issue for resolution is whether the Court of Appeals, in
Ranida submitted the test results from Bataan Doctors Hospital and reversing the decision of the trial court, correctly found petitioner
CDC to the Executive Officer of the Company who requested her to liable for damages to the respondents for issuing an incorrect
undergo another similar test before her re-employment would be HBsAG test result.
considered. Thus, CDC conducted another HBs Ag test on Ranida
which indicated a "Negative" result.11 Ma. Ruby G. Calderon, Med- Garcia maintains he is not negligent, thus not liable for damages,
Tech Officer-in-Charge of CDC, issued a Certification correcting the because he followed the appropriate laboratory measures and
initial result and explaining that the examining medical technologist procedures as dictated by his training and experience; and that he did
(Garcia) interpreted the delayed reaction as positive or reactive.12 everything within his professional competence to arrive at an
objective, impartial and impersonal result.
Thereafter, the Company rehired Ranida.
At the outset, we note that the issues raised are factual in nature.
On July 25, 1994, Ranida and Ramon filed a complaint13 for Whether a person is negligent or not is a question of fact which we
damages against petitioner Garcia and a purportedly unknown cannot pass upon in a petition for review on certiorari which is
pathologist of CDC, claiming that, by reason of the erroneous limited to reviewing errors of law.19
interpretation of the results of Ranida’s examination, she lost her job
and suffered serious mental anxiety, trauma and sleepless nights, Negligence is the failure to observe for the protection of the interest
while Ramon was hospitalized and lost business opportunities. of another person that degree of care, precaution and vigilance which
the circumstances justly demand,20 whereby such other person
On September 26, 1994, respondents amended their complaint14 by suffers injury. For health care providers, the test of the existence of
naming Castro as the "unknown pathologist." negligence is: did the health care provider either fail to do something
which a reasonably prudent health care provider would have done, or
Garcia denied the allegations of gross negligence and incompetence that he or she did something that a reasonably prudent health care
and reiterated the scientific explanation for the "false positive" result provider would not have done; and that failure or action caused
of the first HBs Ag test in his December 7, 1993 letter to the injury to the patient;21 if yes, then he is guilty of negligence.
respondents.15
Thus, the elements of an actionable conduct are: 1) duty, 2) breach,
For his part, Castro claimed that as pathologist, he rarely went to 3) injury, and 4) proximate causation.
CDC and only when a case was referred to him; that he did not
examine Ranida; and that the test results bore only his rubber-stamp All the elements are present in the case at bar.
signature.
Owners and operators of clinical laboratories have the duty to
On September 1, 1997,16 the trial court dismissed the complaint for comply with statutes, as well as rules and regulations, purposely
failure of the respondents to present sufficient evidence to prove the promulgated to protect and promote the health of the people by
liability of Garcia and Castro. It held that respondents should have preventing the operation of substandard, improperly managed and
presented Sto. Domingo because he was the one who interpreted the inadequately supported clinical laboratories and by improving the
test result issued by CDC. Likewise, respondents should have quality of performance of clinical laboratory examinations.22 Their
presented a medical expert to refute the testimonies of Garcia and business is impressed with public interest, as such, high standards of
Castro regarding the medical explanation behind the conflicting test performance are expected from them.
results on Ranida.17
In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the owner
Respondents appealed to the Court of Appeals which reversed the of a furniture shop liable for the destruction of the plaintiff’s house
trial court’s findings, the dispositive portion of which states: in a fire which started in his establishment in view of his failure to
comply with an ordinance which required the construction of a
WHEREFORE, the decision appealed from is REVERSED and SET firewall. In Teague v. Fernandez, we stated that where the very
ASIDE and another one entered ORDERING defendant-appellee injury which was intended to be prevented by the ordinance has
Orlando D. Garcia, Jr. to pay plaintiff-appellant Ranida D. Salvador happened, non-compliance with the ordinance was not only an act of
moral damages in the amount of P50,000.00, exemplary damages in negligence, but also the proximate cause of the death.23
the amount of P50,000.00 and attorney’s fees in the amount of
P25,000.00. In fine, violation of a statutory duty is negligence. Where the law
imposes upon a person the duty to do something, his omission or
SO ORDERED.18 non-performance will render him liable to whoever may be injured
thereby.
The appellate court found Garcia liable for damages for negligently
issuing an erroneous HBs Ag result. On the other hand, it exonerated Section 2 of Republic Act (R.A.) No. 4688, otherwise known as The
Castro for lack of participation in the issuance of the results. Clinical Laboratory Law, provides:
 P a g e | 111

Sec. 2. It shall be unlawful for any person to be professionally in- Health or without employing a registered medical technologist or a
charge of a registered clinical laboratory unless he is a licensed person not registered as a medical technologist in such a position.
physician duly qualified in laboratory medicine and authorized by
the Secretary of Health, such authorization to be renewed annually. And Section 29(b) of R.A. No. 5527, otherwise known as The
Philippine Medical Technology Act of 1969, reads:
No license shall be granted or renewed by the Secretary of Health
for the operation and maintenance of a clinical laboratory unless Section 29. Penal Provisions.- Without prejudice to the provision of
such laboratory is under the administration, direction and the Medical Act of 1959, as amended relating to illegal practice of
supervision of an authorized physician, as provided for in the Medicine, the following shall be punished by a fine of not less than
preceding paragraph. two thousand pesos nor more than five thousand pesos, or
imprisonment for not less than six months nor more than two years,
Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH or both, in the discretion of the court:
Administrative Order No. 49-B Series of 1988, otherwise known as
the Revised Rules and Regulations Governing the Registration, xxxx
Operation and Maintenance of Clinical Laboratories in the
Philippines, read: (b) Any medical technologist, even if duly registered, who shall
practice medical technology in the Philippines without the necessary
Sec. 9. Management of the Clinical Laboratory: supervision of a qualified pathologist or physician authorized by the
Department of Health;
9.1 Head of the Clinical Laboratory: The head is that person who
assumes technical and administrative supervision and control of the From the foregoing laws and rules, it is clear that a clinical
activities in the laboratory. laboratory must be administered, directed and supervised by a
licensed physician authorized by the Secretary of Health, like a
For all categories of clinical laboratories, the head shall be a licensed pathologist who is specially trained in methods of laboratory
physician certified by the Philippine Board of Pathology in either medicine; that the medical technologist must be under the
Anatomic or Clinical Pathology or both provided that: supervision of the pathologist or a licensed physician; and that the
results of any examination may be released only to the requesting
(1) This shall be mandatory for all categories of free-standing physician or his authorized representative upon the direction of the
clinical laboratories; all tertiary category hospital laboratories and laboratory pathologist.
for all secondary category hospital laboratories located in areas with
sufficient available pathologist. These rules are intended for the protection of the public by
preventing performance of substandard clinical examinations by
xxxx laboratories whose personnel are not properly supervised. The public
demands no less than an effective and efficient performance of
Sec. 11. Reporting: All laboratory requests shall be considered as clinical laboratory examinations through compliance with the quality
consultations between the requesting physician and pathologist of standards set by laws and regulations.
the laboratory. As such all laboratory reports on various
examinations of human specimens shall be construed as consultation We find that petitioner Garcia failed to comply with these standards.
report and shall bear the name of the pathologist or his associate. No
person in clinical laboratory shall issue a report, orally or in writing, First, CDC is not administered, directed and supervised by a
whole portions thereof without a directive from the pathologist or his licensed physician as required by law, but by Ma. Ruby C. Calderon,
authorized associate and only to the requesting physician or his a licensed Medical Technologist.24 In the License to Open and
authorized representative except in emergencies when the results Operate a Clinical Laboratory for the years 1993 and 1996 issued by
may be released as authorized by the pathologist. Dr. Juan R. Nañagas, M.D., Undersecretary for Health Facilities,
Standards and Regulation, defendant-appellee Castro was named as
xxxx the head of CDC.25 However, in his Answer with Counterclaim, he
stated:
Sec. 25. Violations:
3. By way of affirmative and special defenses, defendant pathologist
25.1 The license to operate a clinical laboratory may be suspended further avers and plead as follows:
or revoked by the Undersecretary of Health for Standards and
Regulation upon violation of R.A. 4688 or the rules and regulations Defendant pathologist is not the owner of the Community Diagnostic
issued in pursuance thereto or the commission of the following acts Center nor an employee of the same nor the employer of its
by the persons owning or operating a clinical laboratory and the employees. Defendant pathologist comes to the Community
persons under their authority. Diagnostic Center when and where a problem is referred to him. Its
employees are licensed under the Medical Technology Law
(1) Operation of a Clinical Laboratory without a certified pathologist (Republic Act No. 5527) and are certified by, and registered with,
or qualified licensed physician authorized by the Undersecretary of the Professional Regulation Commission after having passed their
Board Examinations. They are competent within the sphere of their
own profession in so far as conducting laboratory examinations and
 P a g e | 112

are allowed to sign for and in behalf of the clinical laboratory. The We find the Court of Appeals’ award of moral damages reasonable
defendant pathologist, and all pathologists in general, are hired by under the circumstances bearing in mind the mental trauma suffered
laboratories for purposes of complying with the rules and regulations by respondent Ranida who thought she was afflicted by Hepatitis B,
and orders issued by the Department of Health through the Bureau of making her "unfit or unsafe for any type of employment."32 Having
Research and Laboratories. Defendant pathologist does not stay that established her right to moral damages, we see no reason to disturb
long period of time at the Community Diagnostic Center but only the award of exemplary damages and attorney’s fees. Exemplary
periodically or whenever a case is referred to him by the laboratory. damages are imposed, by way of example or correction for the
Defendant pathologist does not appoint or select the employees of public good, in addition to moral, temperate, liquidated or
the laboratory nor does he arrange or approve their schedules of compensatory damages,33 and attorney’s fees may be recovered
duty.26 when, as in the instant case, exemplary damages are awarded. 34

Castro’s infrequent visit to the clinical laboratory barely qualifies as WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
an effective administrative supervision and control over the activities CV No. 58668 dated February 27, 2004 finding petitioner Orlando
in the laboratory. "Supervision and control" means the authority to D. Garcia, Jr. guilty of gross negligence and liable to pay to
act directly whenever a specific function is entrusted by law or respondents ₱50,000.00 as moral damages, ₱50,000.00 as exemplary
regulation to a subordinate; direct the performance of duty; restrain damages, and ₱25,000.00 as attorney’s fees, is AFFIRMED.
the commission of acts; review, approve, revise or modify acts and
decisions of subordinate officials or units.27 SO ORDERED.

Second, Garcia conducted the HBsAG test of respondent Ranida G.R. No. 160889
without the supervision of defendant-appellee Castro, who admitted April 27, 2007
that:
DR. MILAGROS L. CANTRE, Petitioner, vs.SPS. JOHN DAVID
[He] does not know, and has never known or met, the plaintiff- Z. GO and NORA S. GO, Respondents.
patient even up to this time nor has he personally examined any
specimen, blood, urine or any other tissue, from the plaintiff-patient QUISUMBING, J.:For review on certiorari are the Decision1 dated
otherwise his own handwritten signature would have appeared in the October 3, 2002 and Resolution2 dated November 19, 2003 of the
result and not merely stamped as shown in Annex "B" of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with
Amended Complaint.28 modification the Decision3 dated March 3, 1997 of the Regional
Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-
Last, the disputed HBsAG test result was released to respondent 16562.
Ranida without the authorization of defendant-appellee Castro.29
The facts, culled from the records, are as follows:
Garcia may not have intended to cause the consequences which
followed after the release of the HBsAG test result. However, his Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and
failure to comply with the laws and rules promulgated and issued for Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was
the protection of public safety and interest is failure to observe that the attending physician of respondent Nora S. Go, who was admitted
care which a reasonably prudent health care provider would observe. at the said hospital on April 19, 1992.
Thus, his act or omission constitutes a breach of duty.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a
Indubitably, Ranida suffered injury as a direct consequence of baby boy. However, at around 3:30 a.m., Nora suffered profuse
Garcia’s failure to comply with the mandate of the laws and rules bleeding inside her womb due to some parts of the placenta which
aforequoted. She was terminated from the service for failing the were not completely expelled from her womb after delivery.
physical examination; suffered anxiety because of the diagnosis; and Consequently, Nora suffered hypovolemic shock, resulting in a drop
was compelled to undergo several more tests. All these could have in her blood pressure to "40" over "0." Petitioner and the assisting
been avoided had the proper safeguards been scrupulously followed resident physician performed various medical procedures to stop the
in conducting the clinical examination and releasing the clinical bleeding and to restore Nora’s blood pressure. Her blood pressure
report. was frequently monitored with the use of a sphygmomanometer.
While petitioner was massaging Nora’s uterus for it to contract and
Article 20 of the New Civil Code provides: stop bleeding, she ordered a droplight to warm Nora and her baby.4
Nora remained unconscious until she recovered.
Art. 20. Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same. While in the recovery room, her husband, respondent John David Z.
Go noticed a fresh gaping wound two and a half (2 ½) by three and a
The foregoing provision provides the legal basis for the award of half (3 ½) inches in the inner portion of her left arm, close to the
damages to a party who suffers damage whenever one commits an armpit.5 He asked the nurses what caused the injury. He was
act in violation of some legal provision.30 This was incorporated by informed it was a burn. Forthwith, on April 22, 1992, John David
the Code Commission to provide relief to a person who suffers filed a request for investigation.6 In response, Dr. Rainerio S. Abad,
damage because another has violated some legal provision.31 the medical director of the hospital, called petitioner and the
 P a g e | 113

assisting resident physician to explain what happened. Petitioner said WHEREFORE, in view of all the foregoing, and finding no
the blood pressure cuff caused the injury. reversible error in the appealed Decision dated March 3, 1997 of
Branch 98 of the Regional Trial Court of Quezon City in Civil Case
On May 7, 1992, John David brought Nora to the National Bureau of No. Q-93-16562, the same is hereby AFFIRMED, with the
Investigation for a physical examination, which was conducted by following MODIFICATIONS:
medico-legal officer Dr. Floresto Arizala, Jr.7 The medico-legal
officer later testified that Nora’s injury appeared to be a burn and 1. Ordering defendant-appellant Dra. Milagros [L.] Cantre
that a droplight when placed near the skin for about 10 minutes only to pay plaintiffs-appellees John David Go and Nora S.
could cause such burn.8 He dismissed the likelihood that the wound Go the sum of P200,000.00 as moral damages;
was caused by a blood pressure cuff as the scar was not around the
arm, but just on one side of the arm.9 2. Deleting the award [of] exemplary damages, attorney’s
fees and expenses of litigation;1awphi1.nét
On May 22, 1992, Nora’s injury was referred to a plastic surgeon at
the Dr. Jesus Delgado Memorial Hospital for skin grafting.10 Her 3. Dismissing the complaint with respect to defendants-
wound was covered with skin sourced from her abdomen, which appellants Dr. Rainerio S. Abad and Delgado Clinic, Inc.;
consequently bore a scar as well. About a year after, on April 30,
1993, scar revision had to be performed at the same hospital.11 The 4. Dismissing the counterclaims of defendants-appellants
surgical operation left a healed linear scar in Nora’s left arm about for lack of merit; and
three inches in length, the thickest portion rising about one-fourth
(1/4) of an inch from the surface of the skin. The costs of the skin
grafting and the scar revision were shouldered by the hospital.12 5. Ordering defendant-appellant Dra. Milagros [L.] Cantre
only to pay the costs.
Unfortunately, Nora’s arm would never be the same.1a\^/phi1.net
Aside from the unsightly mark, the pain in her left arm remains. SO ORDERED.15
When sleeping, she has to cradle her wounded arm. Her movements
now are also restricted. Her children cannot play with the left side of Petitioner’s motion for reconsideration was denied by the Court of
her body as they might accidentally bump the injured arm, which Appeals. Hence, the instant petition assigning the following as errors
aches at the slightest touch. and issues:

Thus, on June 21, 1993, respondent spouses filed a complaint13 for I.

damages against petitioner, Dr. Abad, and the hospital. Finding in
favor of respondent spouses, the trial court decreed: WHETHER OR NOT, THE LOWER COURT, AND THE COURT
OF APPEALS COMMITTED GRAVE ABUSE OF THEIR
In view of the foregoing consideration, judgment is hereby rendered DISCRETION WHEN, NOTWITHSTANDING THAT BOTH
in favor of the plaintiffs and against the defendants, directing the PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE
latters, (sic) jointly and severally – LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS
FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO
(a) to pay the sum of Five Hundred Thousand Pesos BY ANY WITNESS AND THIS DECISION OF THE LOWER
(P500,000.00) in moral damages; COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
(b) to pay the sum of One Hundred Fifty Thousand Pesos
(P150,000.00) exemplary damages; II.

(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) WHETHER OR NOT THE LOWER COURT COMMITTED
nominal damages; GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT THE PETITIONER HAS NOT
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH
attorney’s fees; and THE BODY OF MRS. NORA GO, AND THIS DECISION OF
THE LOWER COURT WAS UPHELD BY THE COURT OF
(e) to pay Six Thousand Pesos (P6,000.00) litigation APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF
expenses. DISCRETION;

SO ORDERED.14 III.

Petitioner, Dr. Abad, and the hospital all appealed to the Court of WHETHER OR NOT THE LOWER COURT COMMITTED
Appeals, which affirmed with modification the trial court decision, GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
thus: PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE
WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY
 P a g e | 114

(BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT Respondents, however, counter that the genuineness and due
MRS. GO CAME ABOUT; execution of the additional documentary exhibits were duly admitted
by petitioner’s counsel. Respondents point out that petitioner’s blood
IV. pressure cuff theory is highly improbable, being unprecedented in
medical history and that the injury was definitely caused by the
WHETHER OR NOT THE COURT OF APPEALS COMMITTED droplight. At any rate, they argue, even if the injury was brought
GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A about by the blood pressure cuff, petitioner was still negligent in her
RULING ON THE RESPONDENT’S INJURY QUOTING THE duties as Nora’s attending physician.
TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND
HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF Simply put, the threshold issues for resolution are: (1) Are the
RESPONDENT MRS. NORA GO; questioned additional exhibits admissible in evidence? (2) Is
petitioner liable for the injury suffered by respondent Nora Go?
V. Thereafter, the inquiry is whether the appellate court committed
grave abuse of discretion in its assailed issuances.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ABUSING ITS DISCRETION RULED THAT PETITIONER DRA. As to the first issue, we agree with the Court of Appeals that said
CANTRE SHOULD HAVE INTENDED TO INFLICT THE exhibits are admissible in evidence. We note that the questioned
INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO; exhibits consist mostly of Nora’s medical records, which were
produced by the hospital during trial pursuant to a subpoena duces
tecum. Petitioner’s counsel admitted the existence of the same when
VI. they were formally offered for admission by the trial court. In any
case, given the particular circumstances of this case, a ruling on the
WHETHER OR NOT THE LOWER COURT AND THE COURT negligence of petitioner may be made based on the res ipsa loquitur
[OF] APPEALS COMMITTED GRAVE ABUSE OF doctrine even in the absence of such additional exhibits.
DISCRETION WHEN, CONTRARY TO THE DETAILED
PROCEDURES DONE BY PETITIONER, BOTH RULED THAT Petitioner’s contention that the medico-legal officer who conducted
THE RESPONDENT WAS LEFT TO THE CARE OF THE Nora’s physical examination never saw her original injury before
NURSING STAFF; plastic surgery was performed is without basis and contradicted by
the records. Records show that the medico-legal officer conducted
VII. the physical examination on May 7, 1992, while the skin grafting
and the scar revision were performed on Nora on May 22, 1992 and
WHETHER OR NOT THE LOWER COURT COMMITTED April 30, 1993, respectively.
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO
THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT Coming now to the substantive matter, is petitioner liable for the
RULED THAT THE COSMETIC SURGERY MADE THE SCARS injury suffered by respondent Nora Go?
EVEN MORE UGLY AND DECLARED THE COSMETIC
SURGERY A FAILURE; The Hippocratic Oath mandates physicians to give primordial
consideration to the well-being of their patients. If a doctor fails to
VIII. live up to this precept, he is accountable for his acts. This
notwithstanding, courts face a unique restraint in adjudicating
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE medical negligence cases because physicians are not guarantors of
OF (SIC) DISCRETION WHEN, CONTRARY TO care and, they never set out to intentionally cause injury to their
RESPONDENTS’ CONTRARY TESTIMONIES AND THE patients. However, intent is immaterial in negligence cases because
ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE where negligence exists and is proven, it automatically gives the
ENTITLED TO DAMAGES AND WHICH WAS UPHELD, injured a right to reparation for the damage caused.17
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS
LIKEWISE ABUSING ITS DISCRETION.16 In cases involving medical negligence, the doctrine of res ipsa
loquitur allows the mere existence of an injury to justify a
Petitioner contends that additional documentary exhibits not testified presumption of negligence on the part of the person who controls the
to by any witness are inadmissible in evidence because they instrument causing the injury, provided that the following requisites
deprived her of her constitutional right to confront the witnesses concur:
against her. Petitioner insists the droplight could not have touched
Nora’s body. She maintains the injury was due to the constant taking 1. The accident is of a kind which ordinarily does not occur
of Nora’s blood pressure. Petitioner also insinuates the Court of in the absence of someone’s negligence;
Appeals was misled by the testimony of the medico-legal officer
who never saw the original injury before plastic surgery was 2. It is caused by an instrumentality within the exclusive
performed. Finally, petitioner stresses that plastic surgery was not control of the defendant or defendants; and
intended to restore respondent’s injury to its original state but rather
to prevent further complication.
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.18
 P a g e | 115

As to the first requirement, the gaping wound on Nora’s arm is We note, however, that petitioner has served well as Nora’s
certainly not an ordinary occurrence in the act of delivering a baby, obstetrician for her past three successful deliveries. This is the first
far removed as the arm is from the organs involved in the process of time petitioner is being held liable for damages due to negligence in
giving birth. Such injury could not have happened unless negligence the practice of her profession. The fact that petitioner promptly took
had set in somewhere. care of Nora’s wound before infection and other complications set in
is also indicative of petitioner’s good intentions. We also take note
Second, whether the injury was caused by the droplight or by the of the fact that Nora was suffering from a critical condition when the
blood pressure cuff is of no moment. Both instruments are deemed injury happened, such that saving her life became petitioner’s
within the exclusive control of the physician in charge under the elemental concern. Nonetheless, it should be stressed that all these
"captain of the ship" doctrine. This doctrine holds the surgeon in could not justify negligence on the part of petitioner.
charge of an operation liable for the negligence of his assistants
during the time when those assistants are under the surgeon’s Hence, considering the specific circumstances in the instant case, we
control.19 In this particular case, it can be logically inferred that find no grave abuse of discretion in the assailed decision and
petitioner, the senior consultant in charge during the delivery of resolution of the Court of Appeals. Further, we rule that the Court of
Nora’s baby, exercised control over the assistants assigned to both Appeals’ award of Two Hundred Thousand Pesos (₱200,000) as
the use of the droplight and the taking of Nora’s blood pressure. moral damages in favor of respondents and against petitioner is just
Hence, the use of the droplight and the blood pressure cuff is also and equitable.21
within petitioner’s exclusive control.
WHEREFORE, the petition is DENIED. The Decision dated
Third, the gaping wound on Nora’s left arm, by its very nature and October 3, 2002 and Resolution dated November 19, 2003 of the
considering her condition, could only be caused by something Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED.
external to her and outside her control as she was unconscious while
in hypovolemic shock. Hence, Nora could not, by any stretch of the No pronouncement as to costs.
imagination, have contributed to her own injury.
[G.R. No. 126297 : February 02, 2010]
Petitioner’s defense that Nora’s wound was caused not by the
droplight but by the constant taking of her blood pressure, even if the PROFESSIONAL SERVICES, INC., PETITIONER, VS. THE
latter was necessary given her condition, does not absolve her from COURT OF APPEALS AND NATIVIDAD AND ENRIQUE
liability. As testified to by the medico-legal officer, Dr. Arizala, Jr., AGANA, RESPONDENTS.
the medical practice is to deflate the blood pressure cuff immediately
after each use. Otherwise, the inflated band can cause injury to the [G.R. NO. 126467]
patient similar to what could have happened in this case. Thus, if
Nora’s wound was caused by the blood pressure cuff, then the taking CORONA, J.:With prior leave of court,[1] petitioner Professional
of Nora’s blood pressure must have been done so negligently as to Services, Inc. (PSI) filed a second motion for reconsideration[2]
have inflicted a gaping wound on her arm,20 for which petitioner urging referral thereof to the Court en banc and seeking modification
cannot escape liability under the "captain of the ship" doctrine. of the decision dated January 31, 2007 and resolution dated February
11, 2008 which affirmed its vicarious and direct liability for
Further, petitioner’s argument that the failed plastic surgery was not damages to respondents Enrique Agana and the heirs of Natividad
intended as a cosmetic procedure, but rather as a measure to prevent Agana (Aganas).
complication does not help her case. It does not negate negligence
on her part. Manila Medical Services, Inc. (MMSI),[3] Asian Hospital, Inc.
(AHI),[4] and Private Hospital Association of the Philippines (PHAP)
[5]
Based on the foregoing, the presumption that petitioner was all sought to intervene in these cases invoking the common ground
negligent in the exercise of her profession stands unrebutted. In this that, unless modified, the assailed decision and resolution will
connection, the Civil Code provides: jeopardize the financial viability of private hospitals and jack up the
cost of health care.
ART. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage The Special First Division of the Court granted the motions for
done.… intervention of MMSI, AHI and PHAP (hereafter intervenors),[6] and
referred en consulta to the Court en banc the motion for prior leave
of court and the second motion for reconsideration of PSI.[7]
ART. 2217. Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded
Due to paramount public interest, the Court en banc accepted the
feelings, moral shock, social humiliation, and similar injury. Though
referral[8] and heard the parties on oral arguments on one particular
incapable of pecuniary computation, moral damages may be
issue: whether a hospital may be held liable for the negligence of
recovered if they are the proximate result of the defendant’s
physicians-consultants allowed to practice in its premises.[9]
wrongful act or omission.
To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr.
Clearly, under the law, petitioner is obliged to pay Nora for moral Ampil) and Dr. Juan Fuentes (Dr. Fuentes), was impleaded by
damages suffered by the latter as a proximate result of petitioner’s Enrique Agana and Natividad Agana (later substituted by her heirs),
negligence. in a complaint[10] for damages filed in the Regional Trial Court
 P a g e | 116

(RTC) of Quezon City, Branch 96, for the injuries suffered by stays should be set aside for being inconsistent with or contrary to
Natividad when Dr. Ampil and Dr. Fuentes neglected to remove the import of the resolution granting the hospital's motion for
from her body two gauzes[11] which were used in the surgery they reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354,
performed on her on April 11, 1984 at the Medical City General April 11, 2002), which is applicable to PSI since the Aganas failed
Hospital. PSI was impleaded as owner, operator and manager of the to prove an employer-employee relationship between PSI and Dr.
hospital. Ampil and PSI proved that it has no control over Dr. Ampil. In fact,
the trial court has found that there is no employer-employee
In a decision[12] dated March 17, 1993, the RTC held PSI solidarily relationship in this case and that the doctor's are independent
liable with Dr. Ampil and Dr. Fuentes for damages.[13] On appeal, the contractors.
Court of Appeals (CA), absolved Dr. Fuentes but affirmed the
liability of Dr. Ampil and PSI, subject to the right of PSI to claim II
reimbursement from Dr. Ampil.[14]
Respondents Aganas engaged Dr. Miguel Ampil as their doctor and
On petition for review, this Court, in its January 31, 2007 decision, did not primarily and specifically look to the Medical City Hospital
affirmed the CA decision.[15] PSI filed a motion for (PSI) for medical care and support; otherwise stated, respondents
reconsideration[16] but the Court denied it in a resolution dated Aganas did not select Medical City Hospital (PSI) to provide
February 11, 2008.[17] medical care because of any apparent authority of Dr. Miguel Ampil
as its agent since the latter was chosen primarily and specifically
The Court premised the direct liability of PSI to the Aganas on the based on his qualifications and being friend and neighbor.
following facts and law:
III
First, there existed between PSI and Dr. Ampil an employer-
employee relationship as contemplated in the December 29, 1999 PSI cannot be liable under doctrine of corporate negligence since the
decision in Ramos v. Court of Appeals[18] that "for purposes of proximate cause of Mrs. Agana's injury was the negligence of Dr.
allocating responsibility in medical negligence cases, an employer- Ampil, which is an element of the principle of corporate negligence.
employee relationship exists between hospitals and their [29]

consultants."[19] Although the Court in Ramos later issued a

Resolution dated April 11, 2002[20] reversing its earlier finding on the
In their respective memoranda, intervenors raise parallel arguments
existence of an employment relationship between hospital and
that the Court's ruling on the existence of an employer-employee
doctor, a similar reversal was not warranted in the present case
relationship between private hospitals and consultants will force a
because the defense raised by PSI consisted of a mere general denial
drastic and complex alteration in the long-established and currently
of control or responsibility over the actions of Dr. Ampil.[21]
prevailing relationships among patient, physician and hospital, with
burdensome operational and financial consequences and adverse
Second, by accrediting Dr. Ampil and advertising his qualifications,
[22] effects on all three parties.[30]
PSI created the public impression that he was its agent. Enrique
testified that it was on account of Dr. Ampil's accreditation with PSI
The Aganas comment that the arguments of PSI need no longer be
that he conferred with said doctor about his wife's (Natividad's)
[23] entertained for they have all been traversed in the assailed decision
condition. After his meeting with Dr. Ampil, Enrique asked
[24] and resolution.[31]
Natividad to personally consult Dr. Ampil. In effect, when
Enrigue and Natividad engaged the services of Dr. Ampil, at the
After gathering its thoughts on the issues, this Court holds that PSI is
back of their minds was that the latter was a staff member of a
liable to the Aganas, not under the principle of respondeat superior
prestigious hospital. Thus, under the doctrine of apparent authority
for lack of evidence of an employment relationship with Dr. Ampil
applied in Nogales, et al. v. Capitol Medical Center, et al.,[25] PSI
but under the principle of ostensible agency for the negligence of Dr.
was liable for the negligence of Dr. Ampil.
Ampil and, pro hac vice, under the principle of corporate negligence
for its failure to perform its duties as a hospital.
Finally, as owner and operator of Medical City General Hospital,
PSI was bound by its duty to provide comprehensive medical
While in theory a hospital as a juridical entity cannot practice
services to Natividad Agana, to exercise reasonable care to protect
[26] medicine,[32] in reality it utilizes doctors, surgeons and medical
her from harm, to oversee or supervise all persons who practiced
practitioners in the conduct of its business of facilitating medical and
medicine within its walls, and to take active steps in fixing any form
surgical treatment.[33] Within that reality, three legal relationships
of negligence committed within its premises.[27] PSI committed a
crisscross: (1) between the hospital and the doctor practicing within
serious breach of its corporate duty when it failed to conduct an
[28] its premises; (2) between the hospital and the patient being treated or
immediate investigation into the reported missing gauzes.
examined within its premises and (3) between the patient and the
doctor. The exact nature of each relationship determines the basis
PSI is now asking this Court to reconsider the foregoing rulings for
and extent of the liability of the hospital for the negligence of the
these reasons:
doctor.
I
Where an employment relationship exists, the hospital may be held
The declaration in the 31 January 2007 Decision vis-a-vis the 11
vicariously liable under Article 2176[34] in relation to Article 2180[35]
February 2009 Resolution that the ruling in Ramos vs. Court of
of the Civil Code or the principle of respondeat superior. Even when
Appeals (G.R. No. 134354, December 29, 1999) that "an employer-
no employment relationship exists but it is shown that the hospital
employee relations exists between hospital and their consultants"
 P a g e | 117

holds out to the patient that the doctor is its agent, the hospital may In fine, as there was no dispute over the RTC finding that PSI and
still be vicariously liable under Article 2176 in relation to Article Dr. Ampil had no employer-employee relationship, such finding
1431[36] and Article 1869[37] of the Civil Code or the principle of became final and conclusive even to this Court.[47] There was no
apparent authority.[38] Moreover, regardless of its relationship with reason for PSI to have raised it as an issue in its petition. Thus,
the doctor, the hospital may be held directly liable to the patient for whatever discussion on the matter that may have ensued was purely
its own negligence or failure to follow established standard of academic.
conduct to which it should conform as a corporation.[39]
Nonetheless, to allay the anxiety of the intervenors, the Court holds
This Court still employs the "control test" to determine the existence that, in this particular instance, the concurrent finding of the RTC
of an employer-employee relationship between hospital and doctor. and the CA that PSI was not the employer of Dr. Ampil is correct.
In Calamba Medical Center, Inc. v. National Labor Relations Control as a determinative factor in testing the employer-employee
Commission, et al.[40] it held: relationship between doctor and hospital under which the hospital
could be held vicariously liable to a patient in medical negligence
Under the "control test", an employment relationship exists between cases is a requisite fact to be established by preponderance of
a physician and a hospital if the hospital controls both the means and evidence. Here, there was insufficient evidence that PSI exercised
the details of the process by which the physician is to accomplish his the power of control or wielded such power over the means and the
task. details of the specific process by which Dr. Ampil applied his skills
in the treatment of Natividad. Consequently, PSI cannot be held
xx xx xx vicariously liable for the negligence of Dr. Ampil under the principle
of respondeat superior.
As priorly stated, private respondents maintained specific work-
schedules, as determined by petitioner through its medical director, There is, however, ample evidence that the hospital (PSI) held out to
which consisted of 24-hour shifts totaling forty-eight hours each the patient (Natividad)[48] that the doctor (Dr. Ampil) was its agent.
week and which were strictly to be observed under pain of Present are the two factors that determine apparent authority: first,
administrative sanctions. the hospital's implied manifestation to the patient which led the latter
to conclude that the doctor was the hospital's agent; and second, the
That petitioner exercised control over respondents gains light patient's reliance upon the conduct of the hospital and the doctor,
from the undisputed fact that in the emergency room, the consistent with ordinary care and prudence.[49]
operating room, or any department or ward for that matter,
respondents' work is monitored through its nursing supervisors, Enrique testified that on April 2, 1984, he consulted Dr. Ampil
charge nurses and orderlies. Without the approval or consent of regarding the condition of his wife; that after the meeting and as
petitioner or its medical director, no operations can be advised by Dr. Ampil, he "asked [his] wife to go to Medical City to
undertaken in those areas. For control test to apply, it is not be examined by [Dr. Ampil]"; and that the next day, April 3, he told
essential for the employer to actually supervise the performance his daughter to take her mother to Dr. Ampil.[50] This timeline
of duties of the employee, it being enough that it has the right to indicates that it was Enrique who actually made the decision on
wield the power. (emphasis supplied) whom Natividad should consult and where, and that the latter merely
acceded to it. It explains the testimony of Natividad that she
consulted Dr. Ampil at the instigation of her daughter.[51]
Even in its December 29, 1999 decision[41] and April 11, 2002
resolution[42] in Ramos, the Court found the control test decisive.
Moreover, when asked what impelled him to choose Dr. Ampil,
Enrique testified:
In the present case, it appears to have escaped the Court's attention
that both the RTC and the CA found no employment relationship
Atty. Agcaoili
between PSI and Dr. Ampil, and that the Aganas did not question
such finding. In its March 17, 1993 decision, the RTC found "that
On that particular occasion, April 2, 1984, what was your reason for
defendant doctors were not employees of PSI in its hospital, they
choosing Dr. Ampil to contact with in connection with your wife's
being merely consultants without any employer-employee
illness?
relationship and in the capacity of independent contractors." [43] The
Aganas never questioned such finding.
A. First, before that, I have known him to be a specialist on that part
[44] of the body as a surgeon, second, I have known him to be a staff
PSI, Dr. Ampil and Dr. Fuentes appealed from the RTC decision
member of the Medical City which is a prominent and known
but only on the issues of negligence, agency and corporate liability.
hospital. And third, because he is a neighbor, I expect more than the
In its September 6, 1996 decision, the CA mistakenly referred to PSI
usual medical service to be given to us, than his ordinary patients.[52]
and Dr. Ampil as employer-employee, but it was clear in its
(emphasis supplied)
discussion on the matter that it viewed their relationship as one of
mere apparent agency.[45]
Clearly, the decision made by Enrique for Natividad to consult Dr.
The Aganas appealed from the CA decision, but only to question the Ampil was significantly influenced by the impression that Dr. Ampil
exoneration of Dr. Fuentes.[46] PSI also appealed from the CA was a staff member of Medical City General Hospital, and that said
decision, and it was then that the issue of employment, though long hospital was well known and prominent. Enrique looked upon Dr.
settled, was unwittingly resurrected. Ampil not as independent of but as integrally related to Medical
City.
 P a g e | 118

by Dr. Ampil when it was not informed about it at all.[55]

PSI's acts tended to confirm and reinforce, rather than negate, (emphasis supplied)
Enrique's view. It is of record that PSI required a "consent for
hospital care"[53] to be signed preparatory to the surgery of Natividad. PSI reiterated its admission when it stated that had Natividad Agana
The form reads: "informed the hospital of her discomfort and pain, the hospital
would have been obliged to act on it."[56]
Permission is hereby given to the medical, nursing and laboratory
staff of the Medical City General Hospital to perform such The significance of the foregoing statements is critical.
diagnostic procedures and to administer such medications and
treatments as may be deemed necessary or advisable by the First, they constitute judicial admission by PSI that while it had no
physicians of this hospital for and during the confinement of xxx. power to control the means or method by which Dr. Ampil
(emphasis supplied) conducted the surgery on Natividad Agana, it had the power to
review or cause the review of what may have irregularly transpired
By such statement, PSI virtually reinforced the public impression within its walls strictly for the purpose of determining whether some
that Dr. Ampil was a physician of its hospital, rather than one form of negligence may have attended any procedure done inside its
independently practicing in it; that the medications and treatments he premises, with the ultimate end of protecting its patients.
prescribed were necessary and desirable; and that the hospital staff
was prepared to carry them out. Second, it is a judicial admission that, by virtue of the nature of its
business as well as its prominence[57] in the hospital industry, it
PSI pointed out in its memorandum that Dr. Ampil's hospital assumed a duty to "tread on" the "captain of the ship" role of any
affiliation was not the exclusive basis of the Aganas' decision to doctor rendering services within its premises for the purpose of
have Natividad treated in Medical City General Hospital, meaning ensuring the safety of the patients availing themselves of its services
that, had Dr. Ampil been affiliated with another hospital, he would and facilities.
still have been chosen by the Aganas as Natividad's surgeon.[54]
Third, by such admission, PSI defined the standards of its corporate
The Court cannot speculate on what could have been behind the conduct under the circumstances of this case, specifically: (a) that it
Aganas' decision but would rather adhere strictly to the fact that, had a corporate duty to Natividad even after her operation to ensure
under the circumstances at that time, Enrique decided to consult Dr. her safety as a patient; (b) that its corporate duty was not limited to
Ampil for he believed him to be a staff member of a prominent and having its nursing staff note or record the two missing gauzes and (c)
known hospital. After his meeting with Dr. Ampil, Enrique advised that its corporate duty extended to determining Dr. Ampil's role in it,
his wife Natividad to go to the Medical City General Hospital to be bringing the matter to his attention, and correcting his negligence.
examined by said doctor, and the hospital acted in a way that
fortified Enrique's belief. And finally, by such admission, PSI barred itself from arguing in its
second motion for reconsideration that the concept of corporate
This Court must therefore maintain the ruling that PSI is vicariously responsibility was not yet in existence at the time Natividad
liable for the negligence of Dr. Ampil as its ostensible agent. underwent treatment;[58] and that if it had any corporate
responsibility, the same was limited to reporting the missing gauzes
Moving on to the next issue, the Court notes that PSI made the and did not include "taking an active step in fixing the negligence
following admission in its Motion for Reconsideration: committed."[59] An admission made in the pleading cannot be
controverted by the party making such admission and is conclusive
51. Clearly, not being an agent or employee of petitioner PSI, PSI as to him, and all proofs submitted by him contrary thereto or
[sic] is not liable for Dr. Ampil's acts during the operation. inconsistent therewith should be ignored, whether or not objection is
Considering further that Dr. Ampil was personally engaged as a interposed by a party.[60]
doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as "Captain
of the Ship", and as the Agana's doctor to advise her on what to do Given the standard of conduct that PSI defined for itself, the next
with her situation vis-a-vis the two missing gauzes. In addition to relevant inquiry is whether the hospital measured up to it.
noting the missing gauzes, regular check-ups were made and no
signs of complications were exhibited during her stay at the PSI excuses itself from fulfilling its corporate duty on the ground
hospital, which could have alerted petitioner PSI's hospital to that Dr. Ampil assumed the personal responsibility of informing
render and provide post-operation services to and tread on Dr. Natividad about the two missing gauzes.[61] Dr. Ricardo Jocson, who
Ampil's role as the doctor of Mrs. Agana. The absence of was part of the group of doctors that attended to Natividad, testified
negligence of PSI from the patient's admission up to her that toward the end of the surgery, their group talked about the
discharge is borne by the finding of facts in this case. Likewise missing gauzes but Dr. Ampil assured them that he would personally
evident therefrom is the absence of any complaint from Mrs. notify the patient about it.[62] Furthermore, PSI claimed that there
Agana after her discharge from the hospital which had she was no reason for it to act on the report on the two missing gauzes
brought to the hospital's attention, could have alerted petitioner because Natividad Agana showed no signs of complications. She did
PSI to act accordingly and bring the matter to Dr. Ampil's not even inform the hospital about her discomfort.[63]
attention. But this was not the case. Ms. Agana complained
ONLY to Drs. Ampil and Fuentes, not the hospital. How then The excuses proffered by PSI are totally unacceptable.
could PSI possibly do something to fix the negligence committed
To begin with, PSI could not simply wave off the problem and
 P a g e | 119

nonchalantly delegate to Dr. Ampil the duty to review what take corrective measures to ensure the safety of Nativad. Rather, for
transpired during the operation. The purpose of such review would 26 years, PSI hemmed and hawed at every turn, disowning any such
have been to pinpoint when, how and by whom two surgical gauzes responsibility to its patient. Meanwhile, the options left to the
were mislaid so that necessary remedial measures could be taken to Aganas have all but dwindled, for the status of Dr. Ampil can no
avert any jeopardy to Natividad's recovery. Certainly, PSI could not longer be ascertained.[66]
have expected that purpose to be achieved by merely hoping that the
person likely to have mislaid the gauzes might be able to retrace his Therefore, taking all the equities of this case into consideration, this
own steps. By its own standard of corporate conduct, PSI's duty to Court believes P15 million would be a fair and reasonable liability of
initiate the review was non-delegable. PSI, subject to 12% p.a. interest from the finality of this resolution to
full satisfaction.
While Dr. Ampil may have had the primary responsibility of
notifying Natividad about the missing gauzes, PSI imposed upon WHEREFORE, the second motion for reconsideration is DENIED
itself the separate and independent responsibility of initiating the and the motions for intervention are NOTED.
inquiry into the missing gauzes. The purpose of the first would have
been to apprise Natividad of what transpired during her surgery, Professional Services, Inc. is ORDERED pro hac vice to pay
while the purpose of the second would have been to pinpoint any Natividad (substituted by her children Marcelino Agana III, Enrique
lapse in procedure that led to the gauze count discrepancy, so as to Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund
prevent a recurrence thereof and to determine corrective measures Agana) and Enrique Agana the total amount of P15 million, subject
that would ensure the safety of Natividad. That Dr. Ampil to 12% p.a. interest from the finality of this resolution to full
negligently failed to notify Natividad did not release PSI from its satisfaction.
self-imposed separate responsibility.
No further pleadings by any party shall be entertained in this case.
Corollary to its non-delegable undertaking to review potential
incidents of negligence committed within its premises, PSI had the Let the long-delayed entry of judgment be made in this case upon
duty to take notice of medical records prepared by its own staff and receipt by all concerned parties of this resolution.
submitted to its custody, especially when these bear earmarks of a
surgery gone awry. Thus, the record taken during the operation of DAVID E. THOMAS V. RALEIGH GENERAL HOSPITAL, A
Natividad which reported a gauze count discrepancy should have CORPORATION, AND DR. JOSEPH J. CAROZZA AND DR.
given PSI sufficient reason to initiate a review. It should not have ELIAS H. ISAAC.NO. 17495
waited for Natividad to complain.
SUPREME COURT OF APPEALS OF WEST VIRGINIA.MAY
As it happened, PSI took no heed of the record of operation and 27, 1987.
consequently did not initiate a review of what transpired during
Natividad's operation. Rather, it shirked its responsibility and passed
it on to others - to Dr. Ampil whom it expected to inform Natividad, *223 TIMOTHY R. RUCKMAN, CALLAGHAN &
and to Natividad herself to complain before it took any meaningful RUCKMAN, SUMMERSVILLE, FOR
step. By its inaction, therefore, PSI failed its own standard of APPELLANT.WILLIAM H. FILE, JR., BECKLEY, FOR
hospital care. It committed corporate negligence. RALEIGH GEN. HOSP.EDGAR A. POE, JR., SHUMAN,
ANNAND & POE, CHARLESTON, FOR DR. ELIAS ISAAC.
It should be borne in mind that the corporate negligence ascribed to
PSI is different from the medical negligence attributed to Dr. Ampil. BROTHERTON, Justice:This is an appeal by David E. Thomas from
The duties of the hospital are distinct from those of the doctor- two summary judgments of the Circuit Court of Raleigh County.
consultant practicing within its premises in relation to the patient; Thomas filed an action against Raleigh General Hospital, Dr. Joseph
hence, the failure of PSI to fulfill its duties as a hospital corporation J. Carozza, and Dr. Elias H. Isaac for medical malpractice. The
gave rise to a direct liability to the Aganas distinct from that of Dr. allegations by Thomas alleged active negligence only by Dr.
Ampil. Carozza, but none by Raleigh General Hospital or Dr. Isaac. Instead,
Thomas relied on theories of vicarious liability for these defendants.
All this notwithstanding, we make it clear that PSI's hospital liability Nevertheless, the trial court found no vicarious liability and
based on ostensible agency and corporate negligence applies only to dismissed the two defendants, from which ruling Thomas appeals.
this case, pro hac vice. It is not intended to set a precedent and
should not serve as a basis to hold hospitals liable for every form of David Thomas arrived at the emergency room of Raleigh General
negligence of their doctors-consultants under any and all Hospital at 10:06 p.m. on December 18, 1981, for a strain on his
circumstances. The ruling is unique to this case, for the liability of right side. The next day he was examined by Dr. Isaac. Thomas told
PSI arose from an implied agency with Dr. Ampil and an admitted Isaac that he had been operated on four times for an incisional hernia
corporate duty to Natividad.[64] with a mesh repair. The patient was then admitted to the hospital for
possible repair of another hernia.
Other circumstances peculiar to this case warrant this ruling,[65] not
the least of which being that the agony wrought upon the Aganas has On December 30, 1981, Dr. Isaac performed an exploration of the
gone on for 26 long years, with Natividad coming to the end of her incisional area called a mini-laparotomy. The anesthesia was given
days racked in pain and agony. Such wretchedness could have been under the direction and control of Dr. Joseph Carozza, a board
avoided had PSI simply done what was logical: heed the report of a certified anesthesiologist, and a certified registered nurse-anesthetist,
guaze count discrepancy, initiate a review of what went wrong and Larry Rupe.
 P a g e | 120

The exploration revealed no evidence of a hernia and revealed that Rules of Civil Procedure, when the moving party presents
the previous hernia repair was strong. All findings of the surgery depositions, interrogatories, affidavits or otherwise indicates that
were good, and Thomas appeared to tolerate the procedures well there is no genuine issue as to any material fact, the resisting party to
with no complications. avoid summary judgment must present some evidence that the facts
are in dispute." See also syllabus point 5, McCullough Oil, Inc. v.
The anesthesia given was a general anesthesia with the use of an Rezek, ___ W.Va. ___, 346 S.E.2d 788 (1986). In the present case
endotracheal tube. Dr. Carozza supervised the procedure, with Nurse Thomas presented no evidence to dispute the finding that Dr. Isaac
Rupe actually giving the anesthesia. had no control over the anesthesia procedure, and therefore the trial
court's ruling on this matter was correct.
The patient was released on January 2, 1982, with no apparent
complications. However, on a follow-up visit to Dr. Isaac's office on Thomas also argues the "captain of the ship" doctrine set out in
January 6, 1982, Thomas complained of being hoarse. His voice was McConnell v. Williams, 361 Pa. 355, 362, 65 A.2d 243, 246 (1949).
weak and breathy. For this condition Thomas went to see Dr. Romeo Under this doctrine, a surgeon is
Lim in Charleston. According to a May 13, 1982, letter by Lim,
Thomas' voice was restored to near normal following steroid
injections.

This law suit was filed in the Circuit Court of Raleigh County
against Raleigh General Hospital and Dr. Joseph Carozza. The . We have not yet touched on this issue in West Virginia. See Farrell,
complaint was later amended to add Dr. Elias Isaac as a defendant. The Law of Medical Malpractice in West Virginia, 82 W.Va.L.Rev.
Motions were made to dismiss the hospital and Dr. Isaac. In ruling 251, 278 (1979).
on these motions, the trial court noted that there was no claim that
the injury occurred directly from Dr. Isaac's surgery, but that the In looking to the history of this doctrine, Pennsylvania originally
injury allegedly occurred when an endotracheal tube was inserted or adopted the captain of the ship doctrine to get around charitable
removed by the nurse-anesthetist. The insertion and removal of the immunity for hospitals:
tube was done under the direction of Dr. Carozza and his employee,
Larry Rupe. Since the allegations against Isaac and the hospital
alleged no active negligence, and *224 the court decided that there ... [I]f operating surgeons were not to be held liable for the negligent
was no vicarious liability, the court dismissed the hospital and Isaac. performance of the duties of those working under them, the law
From this ruling Thomas appeals. would fail in large measure to afford a means of redress for
preventable injury sustained during the course of such operations.
I.
361 Pa. at 364, 65 A.2d at 247. Most states have now abolished the
hospital charitable immunity doctrine, as did West Virginia in
We agree with the trial court in dismissing Dr. Isaac. The only syllabus point 1 of Adkins v. St. Francis Hosp., 149 W.Va. 705, 143
allegations against Dr. Isaac were based on theories of vicarious S.E.2d 154 (1965). The need for the doctrine gone, the majority of
liability. Thomas was not claiming that Isaac injured him through an states which are now considering the captain of the ship doctrine are
act of negligence which Isaac committed, but rather that Isaac's rejecting it. See, e.g., May v. Broun, 261 Or. 28, 37-38, 492 P.2d
supposed agents, whom he was supervising and controlling, injured 776, 780-781 (1972); Sparger v. Worley Hosp., Inc., 547 S.W.2d
Thomas. The theory alleged by Thomas would support a finding of 582, 584 (Tex.1977).[1]
vicarious liability against Isaac if proved. Where a defendant has
control over the negligent actor, he may be vicariously liable for that
actor's negligence. See generally, 5 F. Harper, F. James and O. Gray, *225 We reject the captain of the ship doctrine. The trend toward
The Law of Torts, § 26.1 (2d ed. 1986). Nevertheless, depositions specialization in medicine has created situations where surgeons do
and interrogatories were taken of all the principal actors in the case, not always have the right to control all personnel within the
including the anesthetist, Larry Rupe, the anesthesiologist, Dr. operating room. See Thompson v. Lillehei, 164 F. Supp. 716, 721
Carozza, the surgeon, Dr. Isaac, and the assistant surgeon, Dr. Patel. (D.Minn.1958), aff'd., 273 F.2d 376 (8th cir.1959). An assignment
All of the deposition testimony made it clear that Dr. Isaac had of liability based on a theory of actual control more realistically
nothing to do with the anesthesia procedure. Most of the witnesses reflects the actual relationship which exists in a modern operating
were unsure whether or not Isaac was even in the room when the room. See May v. Broun, 261 Or. 28, 37-38, 492 P.2d 776, 781
tube was inserted, but all were quite clear that he exercised no (1972); see also Bria v. St. Joseph's Hosp., 153 Conn. 626, 629-630,
control whatsoever over Carozza or Rupe. 220 A.2d 29, 31 (1966).[2]

Thus, Dr. Isaac, in support of his motion for summary judgment, has II.
pointed to evidence in the record which proves that he had no
control over the anesthesia procedure. This evidence rebuts Thomas' The question before the Court concerning the dismissal of Raleigh
allegation that Isaac had some control over Carozza and Rupe. In General Hospital is whether Carozza was an independent contractor
order to resist this motion for summary judgment, Thomas must then or an agent of the hospital. If he is found to be an independent
have presented to the trial court evidence showing that these facts contractor, then the hospital is not liable for his negligence. See, e.g.,
were in dispute. We noted in syllabus point 2 of Guthrie v. Cross v. Trapp, ___ W.Va. ___, 294 S.E.2d 446, 459 (1982); see
Northwestern Mut. Life Ins. Co., 158 W.Va. 1, 208 S.E.2d 60 generally, Annotation, Liability of Hospital or Sanitorium for
(1974), that "[u]nder the provisions of Rule 56 of the West Virginia Negligence of Physician or Surgeon, 51 A.L.R.4th 235, § 5 (1987).
 P a g e | 121

If, however, he is found to be an agent of the hospital, then the 54, 68, 63 S. Ct. 444, 452, 87 L. Ed. 610 (1942). The result in the
hospital may be vicariously liable for his negligence. See, e.g., use of the captain of the ship is that a surgeon or physician may be
Jenkins v. Charleston General Hosp. & Training School, 90 W.Va. held liable, not as others upon the basis of the general rule of
230, 235, 110 S.E. 560, 562 (1922); Cross v. Trapp, ___ W.Va. ___, borrowed servant, but as captain of the ship.
294 S.E.2d 446, 459 (1982) (implied); see generally, Annotation, 51
A.L.R.4th 235, § 3 (1987). 547 S.W.2d at 584.

While there was no evidence which would support a holding of [2] Even Pennsylvania has suggested that the captain of the ship
vicarious liability as to Dr. Isaac, this cannot be said of Raleigh doctrine may no longer be a viable theory of vicarious liability under
General Hospital. Pennsylvania law. See Grubb v. Albert Einstein Medical Center, 255
Pa.Super. 381, 402, 387 A.2d 480, 491 (1978).
Dr. Carozza held the positions of Director of Respiratory Services
and Chief of Anesthesiology at the hospital. The hospital gave him Dan S. THOMPSON, Plaintiff,
an office and a stipend for these duties. There is a factual question as v.
to whether these duties and compensation would create a C. Walton LILLEHEI, Richard Varco, Herbert Warden, Earl
relationship where Dr. Carozza was the "manager" of anesthesiology
Schultz, Joseph Buckley, James Matthews, University of
at the hospital. A hospital cannot absolve itself from liability of a
Minnesota, and The Regents of the University of Minnesota,
treating physician where that physician was a "manager" of the
hospital. See Vaughan v. Memorial Hosp., 100 W.Va. 290, 293, 130 Defendants.
S.E. 481, 482 later app., 103 W.Va. 156, 136 S.E. 837 (1925). Geraldine B. THOMPSON, Plaintiff,
Further, Dr. Carozza and his associate were the only v.
anesthesiologists used by the hospital. A patient had no choice in C. Walton LILLEHEI et al., Defendants.
choosing an anesthesiologist. This was assigned to him by the Civ. Nos. 5538, 5539.
hospital. Where a patient goes to a hospital seeking medical services
and is forced to rely on the hospital's choice of physician to render United States District Court D. Minnesota, Fourth Division.
those services, the hospital may be found vicariously liable for the
physician's negligence. See, e.g., Paintsville Hospital Co. v. Rose, September 3, 1958.
683 S.W.2d 255, 256-258 (Ky.1985). See also Annotation, 51
A.L.R.4th 235, § 13(a) (1987).
DEVITT, District Judge.This is an action for malpractice against the
University of Minnesota, its Board of Regents, and six medical
"A motion for summary judgment may only be granted where there
doctors, all members or former members of the University of
is no genuine issue as to any material fact and the moving party is
Minnesota Medical School faculty. The plaintiff, Geraldine
entitled to a judgment as a matter of law." Syllabus point 2,
Thompson, suffered injuries to her person allegedly as the result of
Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907
negligence in the performance of certain medical procedures. She
(1978). Because there are material facts at issue in the dismissal of
and her husband, the other plaintiff, sue to recover damages. There is
Raleigh General Hospital, we find that the grant of summary
diversity of citizenship between the parties.
judgment *226 by the trial court was improper and therefore reverse
on this issue.
In recent years members of the University of Minnesota Medical
School faculty have specialized in the performance of so-called
For the reasons set forth above, the dismissal of Dr. Isaac is
"open heart" surgery, principally upon small children born with
affirmed, and the dismissal of Raleigh General Hospital is reversed
ventricular septal defects. This defect is described in layman's
and the case is remanded.
language as a hole between the two pumping chambers of the heart.
Until recently such a birth defect was viewed as being fatal. These
Affirmed in part, reversed in part, and remanded. doctors have established a "controlled cross circulation" procedure
for successfully operating upon such defects. This method
NOTES contemplates that the patient will be temporarily sustained by a
"donor", who occupies an adjoining table during the operation, and
[1] The court in Sparger noted that the "captain of the ship" doctrine who, through a system of connecting tubes, furnishes heart and lung
had spread further than its drafters intended: facilities to the patient while the heart is operated upon to cure the
defect.
Similes sometimes help to explain a factual situation, but in legal
writing, phrases have a way of being canonized and of growing until The defendants Lillehei and Varco, both surgeons, have established
they can stand and walk independently of the usual general rules. reputations as experts in this field. They have performed many such
Mr. Justice Frankfurter once wrote concerning such phrase-making operations and have conducted lectures and written professional
in judicial opinions: "The phrase ... is an excellent illustration of the papers explanatory of the procedure. The operation here involved
extent to which uncritical use of words bedevils the law. A phrase was to be the 17th of its kind.
begins life as a literary expression; its felicity leads to its lazy
repetition; and repetition soon establishes it as a legal formula, The plaintiffs' 8-year-old daughter, Leslie Ann, was born with a
undiscriminatingly used to express different and sometimes ventricular septal defect. Plaintiffs arranged, principally through
contradictory ideas." Tiller v. Atlantic Coast Line R. Co., 318 U.S. defendant Lillehei, for the performance of a controlled cross
 P a g e | 122

circulation operation upon her. The opertion was started on the Rule 50(b) of the Rules of Civil Procedure, 28 U.S.C.A. In effect, I
morning of October 5, 1954. The patient's mother, Mrs. Geraldine am asked again to rule on the motions for directed verdicts.
Thompson, was to serve as the donor. Medical procedures
preparatory to the actual heart operation took several hours. The The Court has power to enter judgment for the defendants
patient and the donor were placed on adjoining operating tables notwithstanding the inability of the jury to agree, if there is an
about four feet apart. Both were anesthetized. All of the defendants absence of any substantial evidence to prove liability and damages. I
here named were in the operating room. Others, mostly medical may not weigh the evidence. I may not grant the motion if a jury
students and nurses, were also in the room. Drs. Lillehei and Varco question is present. The issue is a legal one as to whether the
were at the patient's operating table in the capacity of surgeons. Dr. plaintiffs, under all the evidence and reasonable inferences to be
Buckley was there as an anesthesiologist.[1] Dr. Warden was at the drawn therefrom, considered in the light most favorable to the
donor's operating table as a surgeon. One Dr. X, not a defendant, plaintiffs, have made out a case as to each defendant. Schad v.
was at this table as an anesthesiologist. Twentieth Century-Fox Film Corp., 3 Cir., 1943, 136 F.2d 991; see 2
Barron & Holtzoff, Fed. Prac. & Proc. § 1079, and cases cited.
Prior to the contemplated commencement of the actual heart surgery
on the girl, and before the cross joinder with the mother had been I have no hesitation in concluding that the plaintiffs have presented
effected, an inordinate event took place at the donor's table. It was no evidence of actual negligence on the part of any of of the
reported by those present there that it was impossible to detect the defendants. Each performed his assigned duties in accordance with
donor's heartbeat or blood pressure. There was evidence that a bottle accepted medical standards. None of them omitted to do that which
of glucose and water hanging overhead, from which a tube entered they should have done. Briefly examining the conduct of each, as
her veins, had become *719 empty. Such a device, called an "i. v." reflected in the evidence, it appears that:
(intravenous), is commonly used in surgical procedures. First aid
methods were employed. She was restored. An operating diagnosis Dr. Lillehei was the surgeon at the patient's table. He performed no
of air embolism was made. This is described as bubbles of air getting
surgical procedure upon the donor. He was solely occupied with the
into the veins. The contemplated operation on Leslie Ann was
abandoned. Allegedly as a result of the air embolism, the donor, preparatory operation upon the patient. Of necessity his back was to
Mrs. Thompson, suffered a brain injury. She was hospitalized at the the donor's table. There was no showing that he failed in any
University of Minnesota Hospital for five months. She has been responsibility following the emergency when it became impossible
partially incapacitated since. There was evidence that Mrs. to detect *720 the donor's pulse, or at any other time.
Thompson has undergone substantial physical and mental change,
and that her injuries will be permanent. Dr. Varco served as an assistant surgeon to Dr. Lillehei at the
patient's table. He had no responsibility in connection with the
surgical procedures or anesthetics on the donor.
The plaintiffs' theory is that the defendants were negligent in the
manner in which they conducted the surgical procedures, specifically Dr. Buckley was the anesthesiologist at the patient's table. He had no
in permitting the glucose and water container to become empty and responsibility in connection with any procedures at the donor's table.
thus to cause an air embolism to get into the blood stream, and that
Dr. Warden was assigned as surgeon at the donor's table. There was
this negligence was the cause of the injuries suffered. Defendants
no evidence that he negligently performed or failed to discharge any
deny negligence and deny any causal connection between the events
transpiring in the operating room and the brain injury. of his responsibilities. One Dr. X, not a defendant in this lawsuit,
was anesthesiologist at this table and, it would appear, was solely
responsible for the administration of anesthetics and the operation of
Prior to trial, the Court dismissed the lawsuit as to the University of
Minnesota and the Regents of the University of Minnesota. Plaintiffs the "i. v." of glucose and water which allegedly became empty.
had no objections to this. Each is a state governmental body, There was no evidence indicating that this was Dr. Warden's duty.
immune from suit.
It thus appears that there is no evidence of any negligence on the part
The Court granted motions for directed verdicts as to the defendants of these four defendants. But the plaintiffs argue that each of these
Schultz and Matthews upon the close of plaintiffs' case. They are defendants is vicariously liable for the alleged negligence of
medical doctors, but were essentially bystanders to the events. somebody in the operating room who did something wrong to cause
the air embolism which, it is said, brought about the brain injury.
The issues went to the jury as to the defendants Lillehei, Varco, This argument is pressed only as to Dr. Lillehei. Although asserted
Warden and Buckley, after the Court had denied their motions for as to the others, there is no plausible ground for considering it as to
directed verdicts at the close of the testimony. Denial of such them.
motions is in accordance with recommended policy and is a common
procedure in the Federal Courts. See Montgomery Ward & Co. v. In support of their theory as to the vicarious liability of Lillehei,
Duncan, 1941, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147; Fratta v. plaintiffs point to evidence which shows that plaintiff, Dan S.
Grace Lines, 2 Cir., 1943, 139 F.2d 743; Craighead v. Missouri Pac. Thompson, made first contact with Lillehei concerning the proposed
Transp. Co., 8 Cir., 1952, 195 F.2d 652. The jury was unable to operation on his daughter, and had several subsequent visits with
agree upon a verdict and was discharged. Lillehei about it; correspondence between the two was exchanged;
they arranged a date for the operation, and Lillehei allegedly assured
For consideration now are the motions of these four defendant- Thompson that there was very little danger involved to the donor and
doctors for orders directing the entry of judgment in their favor that precautions would be taken to prevent an air embolism. Later
notwithstanding the failure of the jury to agree, as is authorized by Lillehei visited Mrs. Thompson in the hospital on several occasions
 P a g e | 123

and communicated with her husband as to the diagnosis of air Regan, Doctor and Patient and the Law, 103 (2d Ed. 1949), as
embolism, and recommended needful physical therapy. follows:

From this, plaintiffs urge that Lillehei was the surgeon in charge of "* * * if the anesthetist is a licensed physician, qualified in
the operation, exercised supervision over others participating in it, or anesthesia, and if the entire charge of the administration of the
should have done so, and is responsible for their conduct and liable anesthetic is placed in his hands, the operating surgeon is not, and it
for their acts of negligence, citing principally St. Paul-Mercury is submitted that he cannot reasonably be, liable for the anesthetist's
Indemnity Co. v. St. Joseph's Hospital, 1942, 212 Minn. 558, 4 negligence — except, of course, as such negligence * * * is observed
N.W.2d 637. * * * and nothing done about it."

Lillehei denies that he was in responsible charge of the entire

In Brossard v. Koop, supra [200 Minn. 410, 274 N.W. 243], in a
operation. He claims he was responsible only for the heart operation
similar situation, the Minnesota Supreme Court outlined the scope of
on the patient. It appears from the evidence, without contradiction,
liability, where several doctors are engaged in an operation, in this
that Lillehei and the other doctor-defendants are salaried members of
language:
the University of Minnesota Medical School faculty, engaged in
teaching duties and surgical practice as members of a "team", by
assignment of their respective superiors. Thus, one Dr. "* * * If any doctor or nurse is negligent in any act or omission
Wangensteen, head of the Department of Surgery, University of connected with an operation, it is right and just that such an one be
Minnesota Medical School, assigns the surgeons to scheduled held responsible; but, where several have distinct and separate parts
operations, as he did in this case, and the corresponding head of the to take, which require the undivided attention of each, only the one
Anesthesiology Department assigns the anesthesiologists. Each of who fails to use due care in the performance of the part assigned to
the doctors thus assigned is responsible to his respective Department him should be held responsible. * * *"
Head, and subject to his direction. The defendants do not receive the
fees paid for medical services. These fees go to the University. To extend the doctrine of respondeat superior to a situation such as
that reflected in the evidence would be to strain the doctrine beyond
Lillehei claims that he therefore had no power of direction over, or the basis for its creation. See Prosser, Torts, 2d Ed. 1955, Sec. 62.
responsibility for, Dr. X in the discharge of his duties as There is no evidence that Lillehei engaged or directed Dr. X or any
anesthesiologist to the donor, and is not liable for his negligence, if of the others in the operating room, or that he had the authority to do
any there be. so. The evidence is to the contrary. The only evidence is that
Lellehei was the one through whom the operation was arranged —
This recital summarizes the respective contentions of the parties on the one who dealt with the plaintiffs in connection with it. This
this issue. I am satisfied that the evidence supports Lillehei's relationship does not spell out responsibility by Lillehei for every
position. There is no evidence to the contrary. There was no showing event which transpired in the operating room. It is manifest from the
that Lillehei appointed or employed Dr. X or others in the operating evidence, and especially from one of the exhibits received in
room, or that he had any supervision or control over Dr. X or others evidence, that the plaintiffs contracted that the operation be
*721 at the donor's table, or that he had any knowledge of any performed, not by Lillehei, but by the "staff of the University
negligent act being taken by others. Absent this, the doctrine of Hospital". In granting permission for the operation, the plaintiff, Dan
"respondeat superior" is inapplicable and Lillehei has no vicarious S. Thompson, signed a statement reading:
responsibility. Compare Morey v. Thybo, 7 Cir., 1912, 199 F. 760,
42 L.R.A.,N. S., 785 with St. Paul-Mercury Indemnity Co. v. St. "I, the undersigned, hereby grant permission for an operation upon
Joseph's Hospital, supra. my daughter, Leslie Ann, such operation to be performed by the
staff of the University Hospitals." [Emphasis supplied.]
And even assuming that Lillehei was "surgeon-in-charge" or
"captain of the ship", as urged, does it follow that he is responsible The case of St. Paul-Mercury Indemnity Co. v. St. Joseph's Hospital,
for the negligence, if any, of an anesthesiologist such as Dr. X, supra, strongly relied upon by the plaintiffs, involved *722 a fact
assigned to the case by his own superior, exercising his own situation different from that presented here, and enunciated a
independent special medical knowledge in performing his duties principle of law inapplicable to this situation. There the Minnesota
without any specific directions from Lillehei? I don't think so. The Supreme Court held that responsibility for injuries to a patient,
cases so indicate. See, among others, Morey v. Thybo, 7 Cir., 1912, inflicted by a hospital nurse, is not to be shared by the hospital in an
199 F. 760; Brossard v. Koop, 1937, 200 Minn. 410, 274 N.W. 241; action for contribution after the entry of the judgment against the
Nelson v. Sandell, 1926, 202 Iowa 109, 209 N.W. 440, 46 A.L.R. doctor who performed the operation, where the nurse in question
1447; Runyan v. Goodrum, 1921, 147 Ark. 481, 228 S.W. 397, 13 was assigned by the hospital to the supervision and direction of the
A.L.R. 1403; Richardson v. Denneen, 1947, 192 Misc. 871, 82 operating surgeon.
N.Y.S.2d 623; Woodson v. Huey, Okl.1953, 261 P.2d 199; Meyer v.
St. Paul-Mercury Indemnity Co., La. App., 61 So. 2d 901 and Huber
v. Protestant Deaconess Hospital Ass'n, Ind.App. 1956, 133 N.E.2d Finally, we consider the evidence of proximate causation between
864. the negligence of the defendants, assuming it to be shown, and the
brain damage suffered by Mrs. Thompson. The law as to the proof
required to show proximate causation in a malpractice case is clear
In the case of Meyer v. St. Paul-Mercury Indemnity Co., supra [61 and exacting.
So. 2d 910], the Court, in holding that ordinarily a surgeon cannot be
held liable for the negligent acts of an anesthetist, quoted from
 P a g e | 124

The mere fact that an accident happened and that injuries are ELY VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ,
suffered does not establish liability as a matter of course. Doctors are DR. PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE
not insurers of their patients' welfare or of the success of an J. DUMLAO, respondents.
operation. They are only required to possess the skill and learning
possessed by the average member of their branch of the profession in
good standing in that locality, and to apply that skill and learning
with due care. Yates v. Gamble, 1936, 198 Minn. 7, 268 N.W. 670. DECISION

Plaintiffs here had the burden of proving that there was negligence,
and that such negligence was the cause of the injury. It is well
established that this proof must be something more than that which
is consistent with their theory of how it happened. Plaintiffs must CARPIO, J.:
show that it is more probable that the harm resulted from some
negligence for which the defendants were responsible than in The Case
consequence of something for which they were not responsible.
Yates v. Gamble, supra; Williamson v. Andrews, 1936, 198 Minn. This petition for review1 assails the 6 February 1998 Decision2 and
349, 270 N.W. 6 and Simon v. Larson, 1941, 210 Minn. 317, 298 21 March 2000 Resolution3 of the Court of Appeals in CA-G.R. CV
N.W. 33. No. 45641. The Court of Appeals affirmed in toto the 22 November
1993 Decision4 of the Regional Trial Court of Manila, Branch 33,
The doctrine of res ipsa loquitur does not apply to a case of this kind. finding Dr. Oscar Estrada solely liable for damages for the death of
The plaintiffs concede this. (Albeit much of their argument is based his patient, Corazon Nogales, while absolving the remaining
on the theory that it is applicable.) The law establishes it, and respondents of any liability. The Court of Appeals denied petitioners'
requires that plaintiffs prove their case through the testimony of motion for reconsideration.
medical experts. Yates v. Gamble, supra; Wallstedt v. Swedish
Hospital, 1945, 220 Minn. 274, 19 N.W.2d 426. The Facts

Two medical experts testified. Dr. Robert Jeub testified for the Pregnant with her fourth child, Corazon Nogales ("Corazon"), who
plaintiffs. He said he was unable to say what caused Mrs. was then 37 years old, was under the exclusive prenatal care of Dr.
Thompson's lesion of the brain. He did say that air embolism can Oscar Estrada ("Dr. Estrada") beginning on her fourth month of
cause this type of brain lesion, but he also said that there are many pregnancy or as early as December 1975. While Corazon was on her
other possible causes, such as congenital anomaly, traumatic last trimester of pregnancy, Dr. Estrada noted an increase in her
congenital vascular anomaly, hemorrhage, embolism or thrombosis. blood pressure and development of leg edema5 indicating
preeclampsia,6 which is a dangerous complication of pregnancy.7
Dr. H. B. Hannah, expert for the defendants, categorically stated that
an air embolism could not cause a brain lesion. He recited reasons Around midnight of 25 May 1976, Corazon started to experience
for his opinion. In essense he said that an air embolism, in order to mild labor pains prompting Corazon and Rogelio Nogales ("Spouses
reach the brain, would have to pass through the heart. He said this Nogales") to see Dr. Estrada at his home. After examining Corazon,
was medically impossible, and was unknown to the profession. It Dr. Estrada advised her immediate admission to the Capitol Medical
would cause death upon reaching the heart. Center ("CMC").

It is thus apparent that plaintiffs have not proved, in accordance with On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC
the standards required by the Minnesota Supreme Court, that the after the staff nurse noted the written admission request 8 of Dr.
injury was caused by the negligence of any of these defendants Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales
either directly or vicariously. A jury may not be permitted to ("Rogelio") executed and signed the "Consent on Admission and
speculate on the matter. A verdict must be founded on proof. Here Agreement"9 and "Admission Agreement."10 Corazon was then
there was no proof that the injury was caused by malpractice of the brought to the labor room of the CMC.
named defendants. Even the plaintiffs' medical expert could not say
so. It may be that liability, if it exists, lies elsewhere. These Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC,
defendants have not been shown to be at fault. conducted an internal examination of Corazon. Dr. Uy then called up
Dr. Estrada to notify him of her findings.
The motions of each of the defendants under Rule 50(b) are granted.
Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada
G.R. No. 142625             December 19, 2006 ordered for 10 mg. of valium to be administered immediately by
intramuscular injection. Dr. Estrada later ordered the start of
ROGELIO P. NOGALES, for himself and on behalf of the intravenous administration of syntocinon admixed with dextrose,
minors, ROGER ANTHONY, ANGELICA, NANCY, and 5%, in lactated Ringers' solution, at the rate of eight to ten micro-
MICHAEL CHRISTOPHER, all surnamed NOGALES, drops per minute.
petitioners,
vs. According to the Nurse's Observation Notes,12 Dr. Joel Enriquez
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ("Dr. Enriquez"), an anesthesiologist at CMC, was notified at 4:15
 P a g e | 125

a.m. of Corazon's admission. Subsequently, when asked if he needed opposing the allegations in the complaint. Subsequently, trial
the services of an anesthesiologist, Dr. Estrada refused. Despite Dr. ensued.
Estrada's refusal, Dr. Enriquez stayed to observe Corazon's
condition. After more than 11 years of trial, the trial court rendered judgment
on 22 November 1993 finding Dr. Estrada solely liable for damages.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of The trial court ruled as follows:
the CMC. At 6:10 a.m., Corazon's bag of water ruptured
spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated. At The victim was under his pre-natal care, apparently, his
6:13 a.m., Corazon started to experience convulsions. fault began from his incorrect and inadequate management
and lack of treatment of the pre-eclamptic condition of his
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of patient. It is not disputed that he misapplied the forceps in
magnesium sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"), causing the delivery because it resulted in a large cervical
who was assisting Dr. Estrada, administered only 2.5 grams of tear which had caused the profuse bleeding which he also
magnesium sulfate. failed to control with the application of inadequate injection
of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low Estrada even failed to notice the erroneous administration
forceps to extract Corazon's baby. In the process, a 1.0 x 2.5 cm. by nurse Dumlao of hemacel by way of side drip, instead of
piece of cervical tissue was allegedly torn. The baby came out in an direct intravenous injection, and his failure to consult a
apnic, cyanotic, weak and injured condition. Consequently, the baby senior obstetrician at an early stage of the problem.
had to be intubated and resuscitated by Dr. Enriquez and Dr.
Payumo. On the part however of Dra. Ely Villaflor, Dra. Rosa Uy,
Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J.
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding Dumlao and CMC, the Court finds no legal justification to
which rapidly became profuse. Corazon's blood pressure dropped find them civilly liable.
from 130/80 to 60/40 within five minutes. There was continuous
profuse vaginal bleeding. The assisting nurse administered hemacel On the part of Dra. Ely Villaflor, she was only taking orders
through a gauge 19 needle as a side drip to the ongoing intravenous from Dr. Estrada, the principal physician of Corazon
injection of dextrose. Nogales. She can only make suggestions in the manner the
patient maybe treated but she cannot impose her will as to
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching do so would be to substitute her good judgment to that of
with bottled blood. It took approximately 30 minutes for the CMC Dr. Estrada. If she failed to correctly diagnose the true
laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to cause of the bleeding which in this case appears to be a
comply with Dr. Estrada's order and deliver the blood. cervical laceration, it cannot be safely concluded by the
Court that Dra. Villaflor had the correct diagnosis and she
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the failed to inform Dr. Estrada. No evidence was introduced to
Obstetrics-Gynecology Department of the CMC, was apprised of show that indeed Dra. Villaflor had discovered that there
Corazon's condition by telephone. Upon being informed that was laceration at the cervical area of the patient's internal
Corazon was bleeding profusely, Dr. Espinola ordered immediate organ.
hysterectomy. Rogelio was made to sign a "Consent to Operation."13
On the part of nurse Dumlao, there is no showing that when
Due to the inclement weather then, Dr. Espinola, who was fetched she administered the hemacel as a side drip, she did it on
from his residence by an ambulance, arrived at the CMC about an her own. If the correct procedure was directly thru the
hour later or at 9:00 a.m. He examined the patient and ordered some veins, it could only be because this was what was probably
resuscitative measures to be administered. Despite Dr. Espinola's the orders of Dr. Estrada.
efforts, Corazon died at 9:15 a.m. The cause of death was
"hemorrhage, post partum."14 While the evidence of the plaintiffs shows that Dr. Noe
Espinola, who was the Chief of the Department of
On 14 May 1980, petitioners filed a complaint for damages15 with Obstetrics and Gynecology who attended to the patient Mrs.
the Regional Trial Court16 of Manila against CMC, Dr. Estrada, Dr. Nogales, it was only at 9:00 a.m. That he was able to reach
Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a the hospital because of typhoon Didang (Exhibit 2). While
certain Nurse J. Dumlao for the death of Corazon. Petitioners mainly he was able to give prescription in the manner Corazon
contended that defendant physicians and CMC personnel were Nogales may be treated, the prescription was based on the
negligent in the treatment and management of Corazon's condition. information given to him by phone and he acted on the
Petitioners charged CMC with negligence in the selection and basis of facts as presented to him, believing in good faith
supervision of defendant physicians and hospital staff. that such is the correct remedy. He was not with Dr. Estrada
when the patient was brought to the hospital at 2:30 o'clock
a.m. So, whatever errors that Dr. Estrada committed on the
For failing to file their answer to the complaint despite service of patient before 9:00 o'clock a.m. are certainly the errors of
summons, the trial court declared Dr. Estrada, Dr. Enriquez, and Dr. Estrada and cannot be the mistake of Dr. Noe Espinola.
Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr. His failure to come to the hospital on time was due to
Espinola, and Dr. Lacson filed their respective answers denying and fortuitous event.
 P a g e | 126

On the part of Dr. Joel Enriquez, while he was present in is hereby ordered dismissed. While the Court looks with
the delivery room, it is not incumbent upon him to call the disfavor the filing of the present complaint against the other
attention of Dr. Estrada, Dra. Villaflor and also of Nurse defendants by the herein plaintiffs, as in a way it has caused
Dumlao on the alleged errors committed by them. Besides, them personal inconvenience and slight damage on their
as anesthesiologist, he has no authority to control the name and reputation, the Court cannot accepts [sic]
actuations of Dr. Estrada and Dra. Villaflor. For the Court however, the theory of the remaining defendants that
to assume that there were errors being committed in the plaintiffs were motivated in bad faith in the filing of this
presence of Dr. Enriquez would be to dwell on conjectures complaint. For this reason defendants' counterclaims are
and speculations. hereby ordered dismissed.

On the civil liability of Dr. Perpetua Lacson, [s]he is a SO ORDERED.18

hematologist and in-charge of the blood bank of the CMC.
The Court cannot accept the theory of the plaintiffs that Petitioners appealed the trial court's decision. Petitioners claimed
there was delay in delivering the blood needed by the that aside from Dr. Estrada, the remaining respondents should be
patient. It was testified, that in order that this blood will be held equally liable for negligence. Petitioners pointed out the extent
made available, a laboratory test has to be conducted to of each respondent's alleged liability.
determine the type of blood, cross matching and other
matters consistent with medical science so, the lapse of 30 On 6 February 1998, the Court of Appeals affirmed the decision of
minutes maybe considered a reasonable time to do all of the trial court.19 Petitioners filed a motion for reconsideration which
these things, and not a delay as the plaintiffs would want the Court of Appeals denied in its Resolution of 21 March 2000.20
the Court to believe.
Hence, this petition.
Admittedly, Dra. Rosa Uy is a resident physician of the
Capitol Medical Center. She was sued because of her
alleged failure to notice the incompetence and negligence Meanwhile, petitioners filed a Manifestation dated 12 April 200221
of Dr. Estrada. However, there is no evidence to support stating that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and
such theory. No evidence was adduced to show that Dra. Nurse Dumlao "need no longer be notified of the petition because
Rosa Uy as a resident physician of Capitol Medical Center, they are absolutely not involved in the issue raised before the
had knowledge of the mismanagement of the patient [Court], regarding the liability of [CMC]."22 Petitioners stressed that
Corazon Nogales, and that notwithstanding such the subject matter of this petition is the liability of CMC for the
knowledge, she tolerated the same to happen. negligence of Dr. Estrada.23

In the pre-trial order, plaintiffs and CMC agreed that The Court issued a Resolution dated 9 September 200224 dispensing
defendant CMC did not have any hand or participation in with the requirement to submit the correct and present addresses of
the selection or hiring of Dr. Estrada or his assistant Dra. respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse
Ely Villaflor as attending physician[s] of the deceased. In Dumlao. The Court stated that with the filing of petitioners'
other words, the two (2) doctors were not employees of the Manifestation, it should be understood that they are claiming only
hospital and therefore the hospital did not have control over against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy
their professional conduct. When Mrs. Nogales was brought who have filed their respective comments. Petitioners are foregoing
to the hospital, it was an emergency case and defendant further claims against respondents Dr. Estrada, Dr. Enriquez, Dr.
CMC had no choice but to admit her. Such being the case, Villaflor, and Nurse Dumlao.
there is therefore no legal ground to apply the provisions of
Article 2176 and 2180 of the New Civil Code referring to The Court noted that Dr. Estrada did not appeal the decision of the
the vicarious liability of an employer for the negligence of Court of Appeals affirming the decision of the Regional Trial Court.
its employees. If ever in this case there is fault or Accordingly, the decision of the Court of Appeals, affirming the trial
negligence in the treatment of the deceased on the part of court's judgment, is already final as against Dr. Oscar Estrada.
the attending physicians who were employed by the family
of the deceased, such civil liability should be borne by the Petitioners filed a motion for reconsideration25 of the Court's 9
attending physicians under the principle of "respondeat September 2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor
superior". and Nurse Dumlao were notified of the petition at their counsels' last
known addresses. Petitioners reiterated their imputation of
WHEREFORE, premises considered, judgment is hereby negligence on these respondents. The Court denied petitioners'
rendered finding defendant Dr. Estrada of Number 13 Motion for Reconsideration in its 18 February 2004 Resolution.26
Pitimini St. San Francisco del Monte, Quezon City civilly
liable to pay plaintiffs: 1) By way of actual damages in the The Court of Appeals' Ruling
amount of P105,000.00; 2) By way of moral damages in the
amount of P700,000.00; 3) Attorney's fees in the amount of In its Decision of 6 February 1998, the Court of Appeals upheld the
P100,000.00 and to pay the costs of suit. trial court's ruling. The Court of Appeals rejected petitioners' view
that the doctrine in Darling v. Charleston Community Memorial
For failure of the plaintiffs to adduce evidence to support its Hospital27 applies to this case. According to the Court of Appeals,
[sic] allegations against the other defendants, the complaint the present case differs from the Darling case since Dr. Estrada is an
 P a g e | 127

independent contractor-physician whereas the Darling case involved Dr. Estrada solely liable for damages. Accordingly, the finding of
a physician and a nurse who were employees of the hospital. the trial court on Dr. Estrada's negligence is already final.

Citing other American cases, the Court of Appeals further held that Petitioners maintain that CMC is vicariously liable for Dr. Estrada's
the mere fact that a hospital permitted a physician to practice negligence based on Article 2180 in relation to Article 2176 of the
medicine and use its facilities is not sufficient to render the hospital Civil Code. These provisions pertinently state:
liable for the physician's negligence.28 A hospital is not responsible
for the negligence of a physician who is an independent contractor.29 Art. 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but
The Court of Appeals found the cases of Davidson v. Conole30 and also for those of persons for whom one is responsible.
Campbell v. Emma Laing Stevens Hospital31 applicable to this case.
Quoting Campbell, the Court of Appeals stated that where there is xxxx
no proof that defendant physician was an employee of defendant
hospital or that defendant hospital had reason to know that any acts Employers shall be liable for the damages caused by their
of malpractice would take place, defendant hospital could not be employees and household helpers acting within the scope of
held liable for its failure to intervene in the relationship of physician- their assigned tasks, even though the former are not
patient between defendant physician and plaintiff. engaged in any business or industry.

On the liability of the other respondents, the Court of Appeals xxxx

applied the "borrowed servant" doctrine considering that Dr. Estrada
was an independent contractor who was merely exercising hospital
privileges. This doctrine provides that once the surgeon enters the The responsibility treated of in this article shall cease when
operating room and takes charge of the proceedings, the acts or the persons herein mentioned prove that they observed all
omissions of operating room personnel, and any negligence the diligence of a good father of a family to prevent
associated with such acts or omissions, are imputable to the damage.
surgeon.32 While the assisting physicians and nurses may be
employed by the hospital, or engaged by the patient, they normally Art. 2176. Whoever by act or omission causes damage to
become the temporary servants or agents of the surgeon in charge another, there being fault or negligence, is obliged to pay
while the operation is in progress, and liability may be imposed upon for the damage done. Such fault or negligence, if there is no
the surgeon for their negligent acts under the doctrine of respondeat pre-existing contractual relation between the parties, is
superior.33 called a quasi-delict and is governed by the provisions of
this Chapter.
The Court of Appeals concluded that since Rogelio engaged Dr.
Estrada as the attending physician of his wife, any liability for Similarly, in the United States, a hospital which is the employer,
malpractice must be Dr. Estrada's sole responsibility. master, or principal of a physician employee, servant, or agent, may
be held liable for the physician's negligence under the doctrine of
While it found the amount of damages fair and reasonable, the Court respondeat superior.34
of Appeals held that no interest could be imposed on unliquidated
claims or damages. In the present case, petitioners maintain that CMC, in allowing Dr.
Estrada to practice and admit patients at CMC, should be liable for
The Issue Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada
as an accredited physician of CMC, though he discovered later that
Dr. Estrada was not a salaried employee of the CMC.35 Rogelio
Basically, the issue in this case is whether CMC is vicariously liable further claims that he was dealing with CMC, whose primary
for the negligence of Dr. Estrada. The resolution of this issue rests, concern was the treatment and management of his wife's condition.
on the other hand, on the ascertainment of the relationship between Dr. Estrada just happened to be the specific person he talked to
Dr. Estrada and CMC. The Court also believes that a determination representing CMC.36 Moreover, the fact that CMC made Rogelio
of the extent of liability of the other respondents is inevitable to sign a Consent on Admission and Admission Agreement 37 and a
finally and completely dispose of the present controversy. Consent to Operation printed on the letterhead of CMC indicates that
CMC considered Dr. Estrada as a member of its medical staff.
The Ruling of the Court
On the other hand, CMC disclaims liability by asserting that Dr.
The petition is partly meritorious. Estrada was a mere visiting physician and that it admitted Corazon
because her physical condition then was classified an emergency
On the Liability of CMC obstetrics case.38

Dr. Estrada's negligence in handling the treatment and management CMC alleges that Dr. Estrada is an independent contractor "for
of Corazon's condition which ultimately resulted in Corazon's death whose actuations CMC would be a total stranger." CMC maintains
is no longer in issue. Dr. Estrada did not appeal the decision of the that it had no control or supervision over Dr. Estrada in the exercise
Court of Appeals which affirmed the ruling of the trial court finding of his medical profession.
 P a g e | 128

The Court had the occasion to determine the relationship between a While the Court in Ramos did not expound on the control test, such
hospital and a consultant or visiting physician and the liability of test essentially determines whether an employment relationship
such hospital for that physician's negligence in Ramos v. Court of exists between a physician and a hospital based on the exercise of
Appeals,39 to wit: control over the physician as to details. Specifically, the employer
(or the hospital) must have the right to control both the means and
In the first place, hospitals exercise significant control in the details of the process by which the employee (or the physician) is
the hiring and firing of consultants and in the conduct of to accomplish his task.41
their work within the hospital premises. Doctors who apply
for "consultant" slots, visiting or attending, are required to After a thorough examination of the voluminous records of this case,
submit proof of completion of residency, their educational the Court finds no single evidence pointing to CMC's exercise of
qualifications; generally, evidence of accreditation by the control over Dr. Estrada's treatment and management of Corazon's
appropriate board (diplomate), evidence of fellowship in condition. It is undisputed that throughout Corazon's pregnancy, she
most cases, and references. These requirements are was under the exclusive prenatal care of Dr. Estrada. At the time of
carefully scrutinized by members of the hospital Corazon's admission at CMC and during her delivery, it was Dr.
administration or by a review committee set up by the Estrada, assisted by Dr. Villaflor, who attended to Corazon. There
hospital who either accept or reject the application. This is was no showing that CMC had a part in diagnosing Corazon's
particularly true with respondent hospital. condition. While Dr. Estrada enjoyed staff privileges at CMC, such
fact alone did not make him an employee of CMC.42 CMC merely
After a physician is accepted, either as a visiting or allowed Dr. Estrada to use its facilities43 when Corazon was about to
attending consultant, he is normally required to attend give birth, which CMC considered an emergency. Considering these
clinico-pathological conferences, conduct bedside rounds circumstances, Dr. Estrada is not an employee of CMC, but an
for clerks, interns and residents, moderate grand rounds and independent contractor.
patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the The question now is whether CMC is automatically exempt from
hospital, and/or for the privilege of admitting patients into liability considering that Dr. Estrada is an independent contractor-
the hospital. In addition to these, the physician's physician.
performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity In general, a hospital is not liable for the negligence of an
statistics, and feedback from patients, nurses, interns and independent contractor-physician. There is, however, an exception to
residents. A consultant remiss in his duties, or a consultant this principle. The hospital may be liable if the physician is the
who regularly falls short of the minimum standards "ostensible" agent of the hospital.44 This exception is also known as
acceptable to the hospital or its peer review committee, is the "doctrine of apparent authority."45 In Gilbert v. Sycamore
normally politely terminated. Municipal Hospital,46 the Illinois Supreme Court explained the
doctrine of apparent authority in this wise:
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant" staff. [U]nder the doctrine of apparent authority a hospital can be
While "consultants" are not, technically employees, a held vicariously liable for the negligent acts of a physician
point which respondent hospital asserts in denying all providing care at the hospital, regardless of whether the
responsibility for the patient's condition, the control physician is an independent contractor, unless the patient
exercised, the hiring, and the right to terminate knows, or should have known, that the physician is an
consultants all fulfill the important hallmarks of an independent contractor. The elements of the action have
employer-employee relationship, with the exception of been set out as follows:
the payment of wages. In assessing whether such a
relationship in fact exists, the control test is "For a hospital to be liable under the doctrine of apparent
determining. Accordingly, on the basis of the foregoing, authority, a plaintiff must show that: (1) the hospital, or its
we rule that for the purpose of allocating responsibility agent, acted in a manner that would lead a reasonable
in medical negligence cases, an employer-employee person to conclude that the individual who was alleged to
relationship in effect exists between hospitals and their be negligent was an employee or agent of the hospital; (2)
attending and visiting physicians. This being the case, the where the acts of the agent create the appearance of
question now arises as to whether or not respondent authority, the plaintiff must also prove that the hospital had
hospital is solidarily liable with respondent doctors for knowledge of and acquiesced in them; and (3) the plaintiff
petitioner's condition. acted in reliance upon the conduct of the hospital or its
agent, consistent with ordinary care and prudence."
The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of The element of "holding out" on the part of the hospital
the Civil Code which considers a person accountable not does not require an express representation by the hospital
only for his own acts but also for those of others based on that the person alleged to be negligent is an employee.
the former's responsibility under a relationship of patria Rather, the element is satisfied if the hospital holds itself
potestas. x x x40 (Emphasis supplied) out as a provider of emergency room care without
informing the patient that the care is provided by
independent contractors.
 P a g e | 129

The element of justifiable reliance on the part of the regulations, directions, and instructions of the
plaintiff is satisfied if the plaintiff relies upon the hospital Physician, the Capitol Medical Center and/or its staff;
to provide complete emergency room care, rather than upon and, that I will not hold liable or responsible and hereby
a specific physician. waive and forever discharge and hold free the Physician,
the Capitol Medical Center and/or its staff, from any and all
The doctrine of apparent authority essentially involves two factors to claims of whatever kind of nature, arising from directly or
determine the liability of an independent-contractor physician. indirectly, or by reason of said cure, treatment, or
retreatment, or emergency measures or intervention of said
The first factor focuses on the hospital's manifestations and is physician, the Capitol Medical Center and/or its staff.
sometimes described as an inquiry whether the hospital acted in a
manner which would lead a reasonable person to conclude that the x x x x51 (Emphasis supplied)
individual who was alleged to be negligent was an employee or
agent of the hospital.47 In this regard, the hospital need not make While the Consent to Operation pertinently reads, thus:
express representations to the patient that the treating physician
is an employee of the hospital; rather a representation may be I, ROGELIO NOGALES, x x x, of my own volition and
general and implied.48 free will, do consent and submit said CORAZON
NOGALES to Hysterectomy, by the Surgical Staff and
The doctrine of apparent authority is a species of the doctrine of Anesthesiologists of Capitol Medical Center and/or
estoppel. Article 1431 of the Civil Code provides that "[t]hrough whatever succeeding operations, treatment, or emergency
estoppel, an admission or representation is rendered conclusive upon measures as may be necessary and most expedient; and,
the person making it, and cannot be denied or disproved as against that I will not hold liable or responsible and hereby waive
the person relying thereon." Estoppel rests on this rule: "Whenever a and forever discharge and hold free the Surgeon, his
party has, by his own declaration, act, or omission, intentionally and assistants, anesthesiologists, the Capitol Medical Center
deliberately led another to believe a particular thing true, and to act and/or its staff, from any and all claims of whatever kind of
upon such belief, he cannot, in any litigation arising out of such nature, arising from directly or indirectly, or by reason of
declaration, act or omission, be permitted to falsify it."49 said operation or operations, treatment, or emergency
measures, or intervention of the Surgeon, his assistants,
In the instant case, CMC impliedly held out Dr. Estrada as a member anesthesiologists, the Capitol Medical Center and/or its
of its medical staff. Through CMC's acts, CMC clothed Dr. Estrada staff.52 (Emphasis supplied)
with apparent authority thereby leading the Spouses Nogales to
believe that Dr. Estrada was an employee or agent of CMC. CMC Without any indication in these consent forms that Dr. Estrada was
cannot now repudiate such authority. an independent contractor-physician, the Spouses Nogales could not
have known that Dr. Estrada was an independent contractor.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its Significantly, no one from CMC informed the Spouses Nogales that
medical staff and facilities to Dr. Estrada. Upon Dr. Estrada's request Dr. Estrada was an independent contractor. On the contrary, Dr.
for Corazon's admission, CMC, through its personnel, readily Atencio, who was then a member of CMC Board of Directors,
accommodated Corazon and updated Dr. Estrada of her condition. testified that Dr. Estrada was part of CMC's surgical staff. 53

Second, CMC made Rogelio sign consent forms printed on CMC Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to
letterhead. Prior to Corazon's admission and supposed hysterectomy, Dr. Espinola, who was then the Head of the Obstetrics and
CMC asked Rogelio to sign release forms, the contents of which Gynecology Department of CMC, gave the impression that Dr.
reinforced Rogelio's belief that Dr. Estrada was a member of CMC's Estrada as a member of CMC's medical staff was collaborating with
medical staff.50 The Consent on Admission and Agreement explicitly other CMC-employed specialists in treating Corazon.
provides:
The second factor focuses on the patient's reliance. It is sometimes
KNOW ALL MEN BY THESE PRESENTS: characterized as an inquiry on whether the plaintiff acted in reliance
upon the conduct of the hospital or its agent, consistent with
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. ordinary care and prudence.54
Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or The records show that the Spouses Nogales relied upon a perceived
person in custody of Ma. Corazon, and representing his/her employment relationship with CMC in accepting Dr. Estrada's
family, of my own volition and free will, do consent and services. Rogelio testified that he and his wife specifically chose Dr.
submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter Estrada to handle Corazon's delivery not only because of their
referred to as Physician) for cure, treatment, retreatment, or friend's recommendation, but more importantly because of Dr.
emergency measures, that the Physician, personally or by Estrada's "connection with a reputable hospital, the [CMC]."55 In
and through the Capitol Medical Center and/or its staff, other words, Dr. Estrada's relationship with CMC played a
may use, adapt, or employ such means, forms or significant role in the Spouses Nogales' decision in accepting Dr.
methods of cure, treatment, retreatment, or emergency Estrada's services as the obstetrician-gynecologist for Corazon's
measures as he may see best and most expedient; that delivery. Moreover, as earlier stated, there is no showing that before
Ma. Corazon and I will comply with any and all rules, and during Corazon's confinement at CMC, the Spouses Nogales
 P a g e | 130

knew or should have known that Dr. Estrada was not an employee of depending on the circumstances.58 When a person needing urgent
CMC. medical attention rushes to a hospital, he cannot bargain on equal
footing with the hospital on the terms of admission and operation.
Further, the Spouses Nogales looked to CMC to provide the best Such a person is literally at the mercy of the hospital. There can be
medical care and support services for Corazon's delivery. The Court no clearer example of a contract of adhesion than one arising from
notes that prior to Corazon's fourth pregnancy, she used to give birth such a dire situation. Thus, the release forms of CMC cannot relieve
inside a clinic. Considering Corazon's age then, the Spouses Nogales CMC from liability for the negligent medical treatment of Corazon.
decided to have their fourth child delivered at CMC, which Rogelio
regarded one of the best hospitals at the time.56 This is precisely On the Liability of the Other Respondents
because the Spouses Nogales feared that Corazon might experience
complications during her delivery which would be better addressed Despite this Court's pronouncement in its 9 September 200259
and treated in a modern and big hospital such as CMC. Moreover, Resolution that the filing of petitioners' Manifestation confined
Rogelio's consent in Corazon's hysterectomy to be performed by a petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and
different physician, namely Dr. Espinola, is a clear indication of Dr. Uy, who have filed their comments, the Court deems it proper to
Rogelio's confidence in CMC's surgical staff. resolve the individual liability of the remaining respondents to put an
end finally to this more than two-decade old controversy.
CMC's defense that all it did was "to extend to [Corazon] its
facilities" is untenable. The Court cannot close its eyes to the reality a) Dr. Ely Villaflor
that hospitals, such as CMC, are in the business of treatment. In this
regard, the Court agrees with the observation made by the Court of Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause
Appeals of North Carolina in Diggs v. Novant Health, Inc.,57 to wit: of Corazon's bleeding and to suggest the correct remedy to Dr.
Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to correct
"The conception that the hospital does not undertake to the error of Nurse Dumlao in the administration of hemacel.
treat the patient, does not undertake to act through its
doctors and nurses, but undertakes instead simply to The Court is not persuaded. Dr. Villaflor admitted administering a
procure them to act upon their own responsibility, no longer lower dosage of magnesium sulfate. However, this was after
reflects the fact. Present day hospitals, as their manner of informing Dr. Estrada that Corazon was no longer in convulsion and
operation plainly demonstrates, do far more than that her blood pressure went down to a dangerous level.61 At that
furnish facilities for treatment. They regularly employ moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of
on a salary basis a large staff of physicians, nurses and magnesium sulfate from 10 to 2.5 grams. Since petitioners did not
internes [sic], as well as administrative and manual dispute Dr. Villaflor's allegation, Dr. Villaflor's defense remains
workers, and they charge patients for medical care and uncontroverted. Dr. Villaflor's act of administering a lower dosage
treatment, collecting for such services, if necessary, by of magnesium sulfate was not out of her own volition or was in
legal action. Certainly, the person who avails himself of contravention of Dr. Estrada's order.
'hospital facilities' expects that the hospital will attempt
to cure him, not that its nurses or other employees will
act on their own responsibility." x x x (Emphasis b) Dr. Rosa Uy
supplied)
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call
Likewise unconvincing is CMC's argument that petitioners are the attention of Dr. Estrada on the incorrect dosage of magnesium
estopped from claiming damages based on the Consent on sulfate administered by Dr. Villaflor; (2) to take corrective
Admission and Consent to Operation. Both release forms consist of measures; and (3) to correct Nurse Dumlao's wrong method of
two parts. The first part gave CMC permission to administer to hemacel administration.
Corazon any form of recognized medical treatment which the CMC
medical staff deemed advisable. The second part of the documents, The Court believes Dr. Uy's claim that as a second year resident
which may properly be described as the releasing part, releases CMC physician then at CMC, she was merely authorized to take the
and its employees "from any and all claims" arising from or by clinical history and physical examination of Corazon.62 However,
reason of the treatment and operation. that routine internal examination did not ipso facto make Dr. Uy
liable for the errors committed by Dr. Estrada. Further, petitioners'
The documents do not expressly release CMC from liability for imputation of negligence rests on their baseless assumption that Dr.
injury to Corazon due to negligence during her treatment or Uy was present at the delivery room. Nothing shows that Dr. Uy
operation. Neither do the consent forms expressly exempt CMC participated in delivering Corazon's baby. Further, it is unexpected
from liability for Corazon's death due to negligence during such from Dr. Uy, a mere resident physician at that time, to call the
treatment or operation. Such release forms, being in the nature of attention of a more experienced specialist, if ever she was present at
contracts of adhesion, are construed strictly against hospitals. the delivery room.
Besides, a blanket release in favor of hospitals "from any and all
claims," which includes claims due to bad faith or gross negligence, c) Dr. Joel Enriquez
would be contrary to public policy and thus void.
Petitioners fault Dr. Joel Enriquez also for not calling the attention
Even simple negligence is not subject to blanket release in favor of of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about their errors.63
establishments like hospitals but may only mitigate liability
 P a g e | 131

Petitioners insist that Dr. Enriquez should have taken, or at least On the Award of Interest on Damages
suggested, corrective measures to rectify such errors.
The award of interest on damages is proper and allowed under
The Court is not convinced. Dr. Enriquez is an anesthesiologist Article 2211 of the Civil Code, which states that in crimes and quasi-
whose field of expertise is definitely not obstetrics and gynecology. delicts, interest as a part of the damages may, in a proper case, be
As such, Dr. Enriquez was not expected to correct Dr. Estrada's adjudicated in the discretion of the court.68
errors. Besides, there was no evidence of Dr. Enriquez's knowledge
of any error committed by Dr. Estrada and his failure to act upon WHEREFORE, the Court PARTLY GRANTS the petition. The
such observation. Court finds respondent Capitol Medical Center vicariously liable for
the negligence of Dr. Oscar Estrada. The amounts of P105,000 as
d) Dr. Perpetua Lacson actual damages and P700,000 as moral damages should each earn
legal interest at the rate of six percent (6%) per annum computed
Petitioners fault Dr. Perpetua Lacson for her purported delay in the from the date of the judgment of the trial court. The Court affirms
delivery of blood Corazon needed.64 Petitioners claim that Dr. the rest of the Decision dated 6 February 1998 and Resolution dated
Lacson was remiss in her duty of supervising the blood bank staff. 21 March 2000 of the Court of Appeals in CA-G.R. CV No. 45641.

As found by the trial court, there was no unreasonable delay in the SO ORDERED.
delivery of blood from the time of the request until the transfusion to
Corazon. Dr. Lacson competently explained the procedure before
blood could be given to the patient.65 Taking into account the
bleeding time, clotting time and cross-matching, Dr. Lacson stated G.R. No. 126297             January 31, 2007
that it would take approximately 45-60 minutes before blood could
be ready for transfusion.66 Further, no evidence exists that Dr. PROFESSIONAL SERVICES, INC., Petitioner,
Lacson neglected her duties as head of the blood bank. vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
e) Dr. Noe Espinola
SANDOVAL-GUTIERREZ, J.:
Petitioners argue that Dr. Espinola should not have ordered
immediate hysterectomy without determining the underlying cause Hospitals, having undertaken one of mankind’s most important and
of Corazon's bleeding. Dr. Espinola should have first considered the delicate endeavors, must assume the grave responsibility of pursuing
possibility of cervical injury, and advised a thorough examination of it with appropriate care. The care and service dispensed through this
the cervix, instead of believing outright Dr. Estrada's diagnosis that high trust, however technical, complex and esoteric its character may
the cause of bleeding was uterine atony. be, must meet standards of responsibility commensurate with the
undertaking to preserve and protect the health, and indeed, the very
Dr. Espinola's order to do hysterectomy which was based on the lives of those placed in the hospital’s keeping.1
information he received by phone is not negligence. The Court
agrees with the trial court's observation that Dr. Espinola, upon Assailed in these three consolidated petitions for review on certiorari
hearing such information about Corazon's condition, believed in is the Court of Appeals’ Decision2 dated September 6, 1996 in CA-
good faith that hysterectomy was the correct remedy. At any rate, the G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with
hysterectomy did not push through because upon Dr. Espinola's modification the Decision3 dated March 17, 1993 of the Regional
arrival, it was already too late. At the time, Corazon was practically Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-
dead. 43322 and nullifying its Order dated September 21, 1993.

f) Nurse J. Dumlao The facts, as culled from the records, are:

In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth On April 4, 1984, Natividad Agana was rushed to the Medical City
Circuit, held that to recover, a patient complaining of injuries General Hospital (Medical City Hospital) because of difficulty of
allegedly resulting when the nurse negligently injected medicine to bowel movement and bloody anal discharge. After a series of
him intravenously instead of intramuscularly had to show that (1) an medical examinations, Dr. Miguel Ampil, petitioner in G.R. No.
intravenous injection constituted a lack of reasonable and ordinary 127590, diagnosed her to be suffering from "cancer of the sigmoid."
care; (2) the nurse injected medicine intravenously; and (3) such
injection was the proximate cause of his injury.
On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the
Medical City Hospital, performed an anterior resection surgery on
In the present case, there is no evidence of Nurse Dumlao's alleged Natividad. He found that the malignancy in her sigmoid area had
failure to follow Dr. Estrada's specific instructions. Even assuming spread on her left ovary, necessitating the removal of certain
Nurse Dumlao defied Dr. Estrada's order, there is no showing that portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s
side-drip administration of hemacel proximately caused Corazon's husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in
death. No evidence linking Corazon's death and the alleged wrongful G.R. No. 126467, to perform hysterectomy on her.
hemacel administration was introduced. Therefore, there is no basis
to hold Nurse Dumlao liable for negligence.
 P a g e | 132

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took failed to acquire jurisdiction over Dr. Ampil who was then in the
over, completed the operation and closed the incision. United States.

However, the operation appeared to be flawed. In the corresponding On February 16, 1986, pending the outcome of the above cases,
Record of Operation dated April 11, 1984, the attending nurses Natividad died and was duly substituted by her above-named
entered these remarks: children (the Aganas).

"sponge count lacking 2 On March 17, 1993, the RTC rendered its Decision in favor of the
Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for
"announced to surgeon searched (sic) done but to no avail continue negligence and malpractice, the decretal part of which reads:
for closure."
WHEREFORE, judgment is hereby rendered for the plaintiffs
On April 24, 1984, Natividad was released from the hospital. Her ordering the defendants PROFESSIONAL SERVICES, INC., DR.
hospital and medical bills, including the doctors’ fees, amounted to MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs,
P60,000.00. jointly and severally, except in respect of the award for exemplary
damages and the interest thereon which are the liabilities of
After a couple of days, Natividad complained of excruciating pain in defendants Dr. Ampil and Dr. Fuentes only, as follows:
her anal region. She consulted both Dr. Ampil and Dr. Fuentes about
it. They told her that the pain was the natural consequence of the 1. As actual damages, the following amounts:
surgery. Dr. Ampil then recommended that she consult an oncologist
to examine the cancerous nodes which were not removed during the a. The equivalent in Philippine Currency of the
operation. total of US$19,900.00 at the rate of P21.60-
US$1.00, as reimbursement of actual expenses
On May 9, 1984, Natividad, accompanied by her husband, went to incurred in the United States of America;
the United States to seek further treatment. After four months of
consultations and laboratory examinations, Natividad was told she b. The sum of P4,800.00 as travel taxes of
was free of cancer. Hence, she was advised to return to the plaintiffs and their physician daughter;
Philippines.
c. The total sum of P45,802.50, representing the
On August 31, 1984, Natividad flew back to the Philippines, still cost of hospitalization at Polymedic Hospital,
suffering from pains. Two weeks thereafter, her daughter found a medical fees, and cost of the saline solution;
piece of gauze protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where he managed to 2. As moral damages, the sum of P2,000,000.00;
extract by hand a piece of gauze measuring 1.5 inches in width. He
then assured her that the pains would soon vanish. 3. As exemplary damages, the sum of P300,000.00;

Dr. Ampil’s assurance did not come true. Instead, the pains 4. As attorney’s fees, the sum of P250,000.00;
intensified, prompting Natividad to seek treatment at the Polymedic
General Hospital. While confined there, Dr. Ramon Gutierrez
detected the presence of another foreign object in her vagina -- a 5. Legal interest on items 1 (a), (b), and (c); 2; and 3
foul-smelling gauze measuring 1.5 inches in width which badly hereinabove, from date of filing of the complaint until full
infected her vaginal vault. A recto-vaginal fistula had formed in her payment; and
reproductive organs which forced stool to excrete through the
vagina. Another surgical operation was needed to remedy the 6. Costs of suit.
damage. Thus, in October 1984, Natividad underwent another
surgery. SO ORDERED.

On November 12, 1984, Natividad and her husband filed with the Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to
RTC, Branch 96, Quezon City a complaint for damages against the the Court of Appeals, docketed as CA-G.R. CV No. 42062.
Professional Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q- Incidentally, on April 3, 1993, the Aganas filed with the RTC a
43322. They alleged that the latter are liable for negligence for motion for a partial execution of its Decision, which was granted in
leaving two pieces of gauze inside Natividad’s body and malpractice an Order dated May 11, 1993. Thereafter, the sheriff levied upon
for concealing their acts of negligence. certain properties of Dr. Ampil and sold them for P451,275.00 and
delivered the amount to the Aganas.
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint for gross Following their receipt of the money, the Aganas entered into an
negligence and malpractice against Dr. Ampil and Dr. Fuentes, agreement with PSI and Dr. Fuentes to indefinitely suspend any
docketed as Administrative Case No. 1690. The PRC Board of further execution of the RTC Decision. However, not long
Medicine heard the case only with respect to Dr. Fuentes because it thereafter, the Aganas again filed a motion for an alias writ of
 P a g e | 133

execution against the properties of PSI and Dr. Fuentes. On contend that the pieces of gauze are prima facie proofs that the
September 21, 1993, the RTC granted the motion and issued the operating surgeons have been negligent.
corresponding writ, prompting Dr. Fuentes to file with the Court of
Appeals a petition for certiorari and prohibition, with prayer for Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of
preliminary injunction, docketed as CA-G.R. SP No. 32198. During Appeals erred in finding him liable for negligence and malpractice
its pendency, the Court of Appeals issued a Resolution5 dated sans evidence that he left the two pieces of gauze in Natividad’s
October 29, 1993 granting Dr. Fuentes’ prayer for injunctive relief. vagina. He pointed to other probable causes, such as: (1) it was Dr.
Fuentes who used gauzes in performing the hysterectomy; (2) the
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with attending nurses’ failure to properly count the gauzes used during
CA-G.R. CV No. 42062. surgery; and (3) the medical intervention of the American doctors
who examined Natividad in the United States of America.
Meanwhile, on January 23, 1995, the PRC Board of Medicine
rendered its Decision6 in Administrative Case No. 1690 dismissing For our resolution are these three vital issues: first, whether the
the case against Dr. Fuentes. The Board held that the prosecution Court of Appeals erred in holding Dr. Ampil liable for negligence
failed to show that Dr. Fuentes was the one who left the two pieces and malpractice; second, whether the Court of Appeals erred in
of gauze inside Natividad’s body; and that he concealed such fact absolving Dr. Fuentes of any liability; and third, whether PSI may be
from Natividad. held solidarily liable for the negligence of Dr. Ampil.

On September 6, 1996, the Court of Appeals rendered its Decision I - G.R. No. 127590
jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No.
32198, thus: Whether the Court of Appeals Erred in Holding Dr. Ampil

WHEREFORE, except for the modification that the case against Liable for Negligence and Malpractice.
defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and
with the pronouncement that defendant-appellant Dr. Miguel Ampil Dr. Ampil, in an attempt to absolve himself, gears the Court’s
is liable to reimburse defendant-appellant Professional Services, attention to other possible causes of Natividad’s detriment. He
Inc., whatever amount the latter will pay or had paid to the plaintiffs- argues that the Court should not discount either of the following
appellees, the decision appealed from is hereby AFFIRMED and the possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body
instant appeal DISMISSED. after performing hysterectomy; second, the attending nurses erred in
counting the gauzes; and third, the American doctors were the ones
Concomitant with the above, the petition for certiorari and who placed the gauzes in Natividad’s body.
prohibition filed by herein defendant-appellant Dr. Juan Fuentes in
CA-G.R. SP No. 32198 is hereby GRANTED and the challenged Dr. Ampil’s arguments are purely conjectural and without basis.
order of the respondent judge dated September 21, 1993, as well as Records show that he did not present any evidence to prove that the
the alias writ of execution issued pursuant thereto are hereby American doctors were the ones who put or left the gauzes in
NULLIFIED and SET ASIDE. The bond posted by the petitioner in Natividad’s body. Neither did he submit evidence to rebut the
connection with the writ of preliminary injunction issued by this correctness of the record of operation, particularly the number of
Court on November 29, 1993 is hereby cancelled. gauzes used. As to the alleged negligence of Dr. Fuentes, we are
mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found
Costs against defendants-appellants Dr. Miguel Ampil and it in order.
Professional Services, Inc.
The glaring truth is that all the major circumstances, taken together,
SO ORDERED. as specified by the Court of Appeals, directly point to Dr. Ampil as
the negligent party, thus:
Only Dr. Ampil filed a motion for reconsideration, but it was denied
in a Resolution7 dated December 19, 1996. First, it is not disputed that the surgeons used gauzes as
sponges to control the bleeding of the patient during the
Hence, the instant consolidated petitions. surgical operation.

In G.R. No. 126297, PSI alleged in its petition that the Court of Second, immediately after the operation, the nurses who
Appeals erred in holding that: (1) it is estopped from raising the assisted in the surgery noted in their report that the ‘sponge
defense that Dr. Ampil is not its employee; (2) it is solidarily liable count (was) lacking 2’; that such anomaly was ‘announced
with Dr. Ampil; and (3) it is not entitled to its counterclaim against to surgeon’ and that a ‘search was done but to no avail’
the Aganas. PSI contends that Dr. Ampil is not its employee, but a prompting Dr. Ampil to ‘continue for closure’ x x x.
mere consultant or independent contractor. As such, he alone should
answer for his negligence. Third, after the operation, two (2) gauzes were extracted
from the same spot of the body of Mrs. Agana where the
In G.R. No. 126467, the Aganas maintain that the Court of Appeals surgery was performed.
erred in finding that Dr. Fuentes is not guilty of negligence or
medical malpractice, invoking the doctrine of res ipsa loquitur. They
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An operation requiring the placing of sponges in the incision is not II - G.R. No. 126467
complete until the sponges are properly removed, and it is settled
that the leaving of sponges or other foreign substances in the wound Whether the Court of Appeals Erred in Absolving
after the incision has been closed is at least prima facie negligence
by the operating surgeon.8 To put it simply, such act is considered so Dr. Fuentes of any Liability
inconsistent with due care as to raise an inference of negligence.
There are even legions of authorities to the effect that such act is
negligence per se.9 The Aganas assailed the dismissal by the trial court of the case
against Dr. Fuentes on the ground that it is contrary to the doctrine
of res ipsa loquitur. According to them, the fact that the two pieces
Of course, the Court is not blind to the reality that there are times of gauze were left inside Natividad’s body is a prima facie evidence
when danger to a patient’s life precludes a surgeon from further of Dr. Fuentes’ negligence.
searching missing sponges or foreign objects left in the body. But
this does not leave him free from any obligation. Even if it has been
shown that a surgeon was required by the urgent necessities of the We are not convinced.
case to leave a sponge in his patient’s abdomen, because of the
dangers attendant upon delay, still, it is his legal duty to so inform Literally, res ipsa loquitur means "the thing speaks for itself." It is
his patient within a reasonable time thereafter by advising her of the rule that the fact of the occurrence of an injury, taken with the
what he had been compelled to do. This is in order that she might surrounding circumstances, may permit an inference or raise a
seek relief from the effects of the foreign object left in her body as presumption of negligence, or make out a plaintiff’s prima facie
her condition might permit. The ruling in Smith v. Zeagler 10 is case, and present a question of fact for defendant to meet with an
explicit, thus: explanation.13 Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control
The removal of all sponges used is part of a surgical operation, and of the defendant and the injury is such that it should not have
when a physician or surgeon fails to remove a sponge he has placed occurred if he, having such control used proper care, it affords
in his patient’s body that should be removed as part of the operation, reasonable evidence, in the absence of explanation that the injury
he thereby leaves his operation uncompleted and creates a new arose from the defendant’s want of care, and the burden of proof is
condition which imposes upon him the legal duty of calling the new shifted to him to establish that he has observed due care and
condition to his patient’s attention, and endeavoring with the means diligence.14
he has at hand to minimize and avoid untoward results likely to
ensue therefrom. From the foregoing statements of the rule, the requisites for the
applicability of the doctrine of res ipsa loquitur are: (1) the
Here, Dr. Ampil did not inform Natividad about the missing two occurrence of an injury; (2) the thing which caused the injury was
pieces of gauze. Worse, he even misled her that the pain she was under the control and management of the defendant; (3) the
experiencing was the ordinary consequence of her operation. Had he occurrence was such that in the ordinary course of things, would not
been more candid, Natividad could have taken the immediate and have happened if those who had control or management used proper
appropriate medical remedy to remove the gauzes from her body. To care; and (4) the absence of explanation by the defendant. Of the
our mind, what was initially an act of negligence by Dr. Ampil has foregoing requisites, the most instrumental is the "control and
ripened into a deliberate wrongful act of deceiving his patient. management of the thing which caused the injury."15

This is a clear case of medical malpractice or more appropriately, We find the element of "control and management of the thing which
medical negligence. To successfully pursue this kind of case, a caused the injury" to be wanting. Hence, the doctrine of res ipsa
patient must only prove that a health care provider either failed to do loquitur will not lie.
something which a reasonably prudent health care provider would
have done, or that he did something that a reasonably prudent It was duly established that Dr. Ampil was the lead surgeon during
provider would not have done; and that failure or action caused the operation of Natividad. He requested the assistance of Dr.
injury to the patient.11 Simply put, the elements are duty, breach, Fuentes only to perform hysterectomy when he (Dr. Ampil) found
injury and proximate causation. Dr, Ampil, as the lead surgeon, had that the malignancy in her sigmoid area had spread to her left ovary.
the duty to remove all foreign objects, such as gauzes, from Dr. Fuentes performed the surgery and thereafter reported and
Natividad’s body before closure of the incision. When he failed to showed his work to Dr. Ampil. The latter examined it and finding
do so, it was his duty to inform Natividad about it. Dr. Ampil everything to be in order, allowed Dr. Fuentes to leave the operating
breached both duties. Such breach caused injury to Natividad, room. Dr. Ampil then resumed operating on Natividad. He was
necessitating her further examination by American doctors and about to finish the procedure when the attending nurses informed
another surgery. That Dr. Ampil’s negligence is the proximate him that two pieces of gauze were missing. A "diligent search" was
cause12 of Natividad’s injury could be traced from his act of closing conducted, but the misplaced gauzes were not found. Dr. Ampil then
the incision despite the information given by the attending nurses directed that the incision be closed. During this entire period, Dr.
that two pieces of gauze were still missing. That they were later on Fuentes was no longer in the operating room and had, in fact, left the
extracted from Natividad’s vagina established the causal link hospital.
between Dr. Ampil’s negligence and the injury. And what further
aggravated such injury was his deliberate concealment of the Under the "Captain of the Ship" rule, the operating surgeon is the
missing gauzes from the knowledge of Natividad and her family. person in complete charge of the surgery room and all personnel
connected with the operation. Their duty is to obey his orders.16 As
 P a g e | 135

stated before, Dr. Ampil was the lead surgeon. In other words, he The owners and managers of an establishment or enterprise are
was the "Captain of the Ship." That he discharged such role is likewise responsible for damages caused by their employees in the
evident from his following conduct: (1) calling Dr. Fuentes to service of the branches in which the latter are employed or on the
perform a hysterectomy; (2) examining the work of Dr. Fuentes and occasion of their functions.
finding it in order; (3) granting Dr. Fuentes’ permission to leave; and
(4) ordering the closure of the incision. To our mind, it was this act Employers shall be liable for the damages caused by their employees
of ordering the closure of the incision notwithstanding that two and household helpers acting within the scope of their assigned tasks
pieces of gauze remained unaccounted for, that caused injury to even though the former are not engaged in any business or industry.
Natividad’s body. Clearly, the control and management of the thing
which caused the injury was in the hands of Dr. Ampil, not Dr. x x x x x x
Fuentes.
The responsibility treated of in this article shall cease when the
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, persons herein mentioned prove that they observed all the diligence
hence, does not per se create or constitute an independent or separate of a good father of a family to prevent damage.
ground of liability, being a mere evidentiary rule.17 In other words,
mere invocation and application of the doctrine does not dispense
with the requirement of proof of negligence. Here, the negligence A prominent civilist commented that professionals engaged by an
was proven to have been committed by Dr. Ampil and not by Dr. employer, such as physicians, dentists, and pharmacists, are not
Fuentes. "employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer).
In other words, professionals are considered personally liable for the
III - G.R. No. 126297 fault or negligence they commit in the discharge of their duties, and
their employer cannot be held liable for such fault or negligence. In
Whether PSI Is Liable for the Negligence of Dr. Ampil the context of the present case, "a hospital cannot be held liable for
the fault or negligence of a physician or surgeon in the treatment or
The third issue necessitates a glimpse at the historical development operation of patients."21
of hospitals and the resulting theories concerning their liability for
the negligence of physicians. The foregoing view is grounded on the traditional notion that the
professional status and the very nature of the physician’s calling
Until the mid-nineteenth century, hospitals were generally charitable preclude him from being classed as an agent or employee of a
institutions, providing medical services to the lowest classes of hospital, whenever he acts in a professional capacity.22 It has been
society, without regard for a patient’s ability to pay.18 Those who said that medical practice strictly involves highly developed and
could afford medical treatment were usually treated at home by their specialized knowledge,23 such that physicians are generally free to
doctors.19 However, the days of house calls and philanthropic health exercise their own skill and judgment in rendering medical services
care are over. The modern health care industry continues to distance sans interference.24 Hence, when a doctor practices medicine in a
itself from its charitable past and has experienced a significant hospital setting, the hospital and its employees are deemed to
conversion from a not-for-profit health care to for-profit hospital subserve him in his ministrations to the patient and his actions are of
businesses. Consequently, significant changes in health law have his own responsibility.25
accompanied the business-related changes in the hospital industry.
One important legal change is an increase in hospital liability for The case of Schloendorff v. Society of New York Hospital26 was
medical malpractice. Many courts now allow claims for hospital then considered an authority for this view. The "Schloendorff
vicarious liability under the theories of respondeat superior, apparent doctrine" regards a physician, even if employed by a hospital, as an
authority, ostensible authority, or agency by estoppel. 20 independent contractor because of the skill he exercises and the lack
of control exerted over his work. Under this doctrine, hospitals are
In this jurisdiction, the statute governing liability for negligent acts is exempt from the application of the respondeat superior principle for
Article 2176 of the Civil Code, which reads: fault or negligence committed by physicians in the discharge of their
profession.
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage However, the efficacy of the foregoing doctrine has weakened with
done. Such fault or negligence, if there is no pre-existing contractual the significant developments in medical care. Courts came to realize
relation between the parties, is called a quasi-delict and is governed that modern hospitals are increasingly taking active role in supplying
by the provisions of this Chapter. and regulating medical care to patients. No longer were a hospital’s
functions limited to furnishing room, food, facilities for treatment
A derivative of this provision is Article 2180, the rule governing and operation, and attendants for its patients. Thus, in Bing v.
vicarious liability under the doctrine of respondeat superior, thus: Thunig,27 the New York Court of Appeals deviated from the
Schloendorff doctrine, noting that modern hospitals actually do far
ART. 2180. The obligation imposed by Article 2176 is demandable more than provide facilities for treatment. Rather, they regularly
not only for one’s own acts or omissions, but also for those of employ, on a salaried basis, a large staff of physicians, interns,
persons for whom one is responsible. nurses, administrative and manual workers. They charge patients for
medical care and treatment, even collecting for such services
through legal action, if necessary. The court then concluded that
x x x x x x
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there is no reason to exempt hospitals from the universal rule of the applicability of these doctrines, thus, enriching our
respondeat superior. jurisprudence.

In our shores, the nature of the relationship between the hospital and Apparent authority, or what is sometimes referred to as the "holding
the physicians is rendered inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals28 that for purposes of out" theory, or doctrine of ostensible agency or agency by estoppel,29
apportioning responsibility in medical negligence cases, an has its origin from the law of agency. It imposes liability, not as the
employer-employee relationship in effect exists between hospitals result of the reality of a contractual relationship, but rather because
and their attending and visiting physicians. This Court held: of the actions of a principal or an employer in somehow misleading
the public into believing that the relationship or the authority
"We now discuss the responsibility of the hospital in this particular exists.30 The concept is essentially one of estoppel and has been
incident. The unique practice (among private hospitals) of filling up explained in this manner:
specialist staff with attending and visiting "consultants," who are
allegedly not hospital employees, presents problems in apportioning "The principal is bound by the acts of his agent with the apparent
responsibility for negligence in medical malpractice cases. However, authority which he knowingly permits the agent to assume, or which
the difficulty is more apparent than real. he holds the agent out to the public as possessing. The question in
every case is whether the principal has by his voluntary act placed
In the first place, hospitals exercise significant control in the hiring the agent in such a situation that a person of ordinary prudence,
and firing of consultants and in the conduct of their work within the conversant with business usages and the nature of the particular
hospital premises. Doctors who apply for ‘consultant’ slots, visiting business, is justified in presuming that such agent has authority to
or attending, are required to submit proof of completion of perform the particular act in question.31
residency, their educational qualifications, generally, evidence of
accreditation by the appropriate board (diplomate), evidence of The applicability of apparent authority in the field of hospital
fellowship in most cases, and references. These requirements are liability was upheld long time ago in Irving v. Doctor Hospital of
carefully scrutinized by members of the hospital administration or by Lake Worth, Inc.32 There, it was explicitly stated that "there does not
a review committee set up by the hospital who either accept or reject appear to be any rational basis for excluding the concept of apparent
the application. x x x. authority from the field of hospital liability." Thus, in cases where it
can be shown that a hospital, by its actions, has held out a particular
After a physician is accepted, either as a visiting or attending physician as its agent and/or employee and that a patient has
consultant, he is normally required to attend clinico-pathological accepted treatment from that physician in the reasonable belief that it
conferences, conduct bedside rounds for clerks, interns and is being rendered in behalf of the hospital, then the hospital will be
residents, moderate grand rounds and patient audits and perform liable for the physician’s negligence.
other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting Our jurisdiction recognizes the concept of an agency by implication
patients into the hospital. In addition to these, the physician’s or estoppel. Article 1869 of the Civil Code reads:
performance as a specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity statistics, and ART. 1869. Agency may be express, or implied from the acts of the
feedback from patients, nurses, interns and residents. A consultant principal, from his silence or lack of action, or his failure to
remiss in his duties, or a consultant who regularly falls short of the repudiate the agency, knowing that another person is acting on his
minimum standards acceptable to the hospital or its peer review behalf without authority.
committee, is normally politely terminated.
In this case, PSI publicly displays in the lobby of the Medical City
In other words, private hospitals, hire, fire and exercise real control Hospital the names and specializations of the physicians associated
over their attending and visiting ‘consultant’ staff. While or accredited by it, including those of Dr. Ampil and Dr. Fuentes.
‘consultants’ are not, technically employees, x x x, the control We concur with the Court of Appeals’ conclusion that it "is now
exercised, the hiring, and the right to terminate consultants all fulfill estopped from passing all the blame to the physicians whose names
the important hallmarks of an employer-employee relationship, with it proudly paraded in the public directory leading the public to
the exception of the payment of wages. In assessing whether such a believe that it vouched for their skill and competence." Indeed, PSI’s
relationship in fact exists, the control test is determining. act is tantamount to holding out to the public that Medical City
Accordingly, on the basis of the foregoing, we rule that for the Hospital, through its accredited physicians, offers quality health care
purpose of allocating responsibility in medical negligence cases, an services. By accrediting Dr. Ampil and Dr. Fuentes and publicly
employer-employee relationship in effect exists between hospitals advertising their qualifications, the hospital created the impression
and their attending and visiting physicians. " that they were its agents, authorized to perform medical or surgical
services for its patients. As expected, these patients, Natividad being
But the Ramos pronouncement is not our only basis in sustaining one of them, accepted the services on the reasonable belief that such
PSI’s liability. Its liability is also anchored upon the agency principle were being rendered by the hospital or its employees, agents, or
of apparent authority or agency by estoppel and the doctrine of servants. The trial court correctly pointed out:
corporate negligence which have gained acceptance in the
determination of a hospital’s liability for negligent acts of health x x x regardless of the education and status in life of the patient, he
professionals. The present case serves as a perfect platform to test ought not be burdened with the defense of absence of employer-
 P a g e | 137

employee relationship between the hospital and the independent following the doctrine of corporate responsibility, has the duty to see
physician whose name and competence are certainly certified to the that it meets the standards of responsibilities for the care of patients.
general public by the hospital’s act of listing him and his specialty in Such duty includes the proper supervision of the members of its
its lobby directory, as in the case herein. The high costs of today’s medical staff. And in Bost v. Riley,40 the court concluded that a
medical and health care should at least exact on the hospital greater, patient who enters a hospital does so with the reasonable expectation
if not broader, legal responsibility for the conduct of treatment and that it will attempt to cure him. The hospital accordingly has the duty
surgery within its facility by its accredited physician or surgeon, to make a reasonable effort to monitor and oversee the treatment
regardless of whether he is independent or employed."33 prescribed and administered by the physicians practicing in its
premises.
The wisdom of the foregoing ratiocination is easy to discern.
Corporate entities, like PSI, are capable of acting only through other In the present case, it was duly established that PSI operates the
individuals, such as physicians. If these accredited physicians do Medical City Hospital for the purpose and under the concept of
their job well, the hospital succeeds in its mission of offering quality providing comprehensive medical services to the public.
medical services and thus profits financially. Logically, where Accordingly, it has the duty to exercise reasonable care to protect
negligence mars the quality of its services, the hospital should not be from harm all patients admitted into its facility for medical
allowed to escape liability for the acts of its ostensible agents. treatment. Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
We now proceed to the doctrine of corporate negligence or corporate
responsibility. x x x PSI’s liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of the count
One allegation in the complaint in Civil Case No. Q-43332 for nurse. Such failure established PSI’s part in the dark conspiracy of
negligence and malpractice is that PSI as owner, operator and silence and concealment about the gauzes. Ethical considerations, if
manager of Medical City Hospital, "did not perform the necessary not also legal, dictated the holding of an immediate inquiry into the
supervision nor exercise diligent efforts in the supervision of Drs. events, if not for the benefit of the patient to whom the duty is
Ampil and Fuentes and its nursing staff, resident doctors, and primarily owed, then in the interest of arriving at the truth. The
medical interns who assisted Drs. Ampil and Fuentes in the Court cannot accept that the medical and the healing professions,
performance of their duties as surgeons."34 Premised on the doctrine through their members like defendant surgeons, and their institutions
of corporate negligence, the trial court held that PSI is directly liable like PSI’s hospital facility, can callously turn their backs on and
for such breach of duty. disregard even a mere probability of mistake or negligence by
refusing or failing to investigate a report of such seriousness as the
We agree with the trial court. one in Natividad’s case.

Recent years have seen the doctrine of corporate negligence as the It is worthy to note that Dr. Ampil and Dr. Fuentes operated on
judicial answer to the problem of allocating hospital’s liability for Natividad with the assistance of the Medical City Hospital’s staff,
the negligent acts of health practitioners, absent facts to support the composed of resident doctors, nurses, and interns. As such, it is
application of respondeat superior or apparent authority. Its reasonable to conclude that PSI, as the operator of the hospital, has
formulation proceeds from the judiciary’s acknowledgment that in actual or constructive knowledge of the procedures carried out,
these modern times, the duty of providing quality medical service is particularly the report of the attending nurses that the two pieces of
no longer the sole prerogative and responsibility of the physician. gauze were missing. In Fridena v. Evans,41 it was held that a
The modern hospitals have changed structure. Hospitals now tend to corporation is bound by the knowledge acquired by or notice given
organize a highly professional medical staff whose competence and to its agents or officers within the scope of their authority and in
performance need to be monitored by the hospitals commensurate reference to a matter to which their authority extends. This means
with their inherent responsibility to provide quality medical care. 35 that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the
attending nurses’ report, to investigate and inform Natividad
The doctrine has its genesis in Darling v. Charleston Community regarding the missing gauzes amounts to callous negligence. Not
Hospital.36 There, the Supreme Court of Illinois held that "the jury only did PSI breach its duties to oversee or supervise all persons
could have found a hospital negligent, inter alia, in failing to have a who practice medicine within its walls, it also failed to take an active
sufficient number of trained nurses attending the patient; failing to step in fixing the negligence committed. This renders PSI, not only
require a consultation with or examination by members of the vicariously liable for the negligence of Dr. Ampil under Article 2180
hospital staff; and failing to review the treatment rendered to the of the Civil Code, but also directly liable for its own negligence
patient." On the basis of Darling, other jurisdictions held that a under Article 2176. In Fridena, the Supreme Court of Arizona held:
hospital’s corporate negligence extends to permitting a physician
known to be incompetent to practice at the hospital.37 With the
passage of time, more duties were expected from hospitals, among x x x In recent years, however, the duty of care owed to the patient
them: (1) the use of reasonable care in the maintenance of safe and by the hospital has expanded. The emerging trend is to hold the
adequate facilities and equipment; (2) the selection and retention of hospital responsible where the hospital has failed to monitor and
competent physicians; (3) the overseeing or supervision of all review medical services being provided within its walls. See Kahn
persons who practice medicine within its walls; and (4) the Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients.38 Thus, in Tucson Among the cases indicative of the ‘emerging trend’ is Purcell v.
Medical Center, Inc. v. Misevich,39 it was held that a hospital, Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the
 P a g e | 138

hospital argued that it could not be held liable for the malpractice of AUSTRIA-MARTINEZ, J.:
a medical practitioner because he was an independent contractor
within the hospital. The Court of Appeals pointed out that the Before this Court is a Petition for Review on Certiorari under Rule
hospital had created a professional staff whose competence and 45 questioning the Decision1 dated October 2, 2001 promulgated by
performance was to be monitored and reviewed by the governing the Court of Appeals (CA) in CA-G.R. CV No. 61581, which
body of the hospital, and the court held that a hospital would be affirmed the Decision dated September 30, 1997 of the Regional
negligent where it had knowledge or reason to believe that a doctor Trial Court (RTC), Branch 159, Pasig City, but which reduced the
using the facilities was employing a method of treatment or care award of damages.
which fell below the recognized standard of care.
This case originated from an action for damages filed with the RTC
Subsequent to the Purcell decision, the Arizona Court of Appeals by respondents So Un Chua and Vicky Ty against petitioner Manila
held that a hospital has certain inherent responsibilities regarding the Doctors Hospital.2 The complaint is premised on the alleged
quality of medical care furnished to patients within its walls and it unwarranted actuations of the petitioner towards its patient,
must meet the standards of responsibility commensurate with this respondent So Un Chua (Chua), who was confined for hypertension,
undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, diabetes, and related illnesses.
500 P. 2d 1153 (1972). This court has confirmed the rulings of the
Court of Appeals that a hospital has the duty of supervising the The antecedents of the case follow:
competence of the doctors on its staff. x x x.
On December 13, 1993, respondents filed a Complaint averring that
x x x x x x on October 30, 1990, respondent Chua, the mother of respondent
Vicky Ty, was admitted in petitioner's hospital for hypertension and
In the amended complaint, the plaintiffs did plead that the operation diabetes; that while respondent Chua was confined, Judith Chua, the
was performed at the hospital with its knowledge, aid, and sister of respondent Ty, had been likewise confined for injuries
assistance, and that the negligence of the defendants was the suffered in a vehicular accident; that partial payments of the hospital
proximate cause of the patient’s injuries. We find that such general bills were made, totaling P435,800.00; that after the discharge of
allegations of negligence, along with the evidence produced at the Judith Chua, respondent Chua remained in confinement and the
trial of this case, are sufficient to support the hospital’s liability hospital bills for both patients accumulated; that respondent Chua
based on the theory of negligent supervision." was pressured by the petitioner, through its Credit and Collection
Department, to settle the unpaid bills; that respondent Ty represented
Anent the corollary issue of whether PSI is solidarily liable with Dr. that she will settle the bills as soon as the funds become available;
Ampil for damages, let it be emphasized that PSI, apart from a that respondent Ty pleaded to the management that in view of the
general denial of its responsibility, failed to adduce evidence physical condition of her mother, respondent Chua, the
showing that it exercised the diligence of a good father of a family in correspondences relating to the settlement of the unpaid hospital
the accreditation and supervision of the latter. In neglecting to offer bills should be relayed to the former; that these pleas were unheeded
such proof, PSI failed to discharge its burden under the last by the petitioner; that petitioner threatened to implement unpleasant
paragraph of Article 2180 cited earlier, and, therefore, must be measures unless respondent Ty undertakes her mother's obligation as
adjudged solidarily liable with Dr. Ampil. Moreover, as we have well as the obligation of her sister, Judith Chua, to pay the
discussed, PSI is also directly liable to the Aganas. hospitalization expenses; that petitioner made good its threat and
employed unethical, unpleasant and unlawful methods which
One final word. Once a physician undertakes the treatment and care allegedly worsened the condition of respondent Chua, particularly,
of a patient, the law imposes on him certain obligations. In order to by (i) cutting off the telephone line in her room and removing the
escape liability, he must possess that reasonable degree of learning, air-conditioning unit, television set, and refrigerator, (ii) refusing to
skill and experience required by his profession. At the same time, he render medical attendance and to change the hospital gown and bed
must apply reasonable care and diligence in the exercise of his skill sheets, and (iii) barring the private nurses or midwives from assisting
and the application of his knowledge, and exert his best judgment. the patient. Respondents thus prayed for the award of moral
damages, exemplary damages, and attorney's fees.
WHEREFORE, we DENY all the petitions and AFFIRM the
challenged Decision of the Court of Appeals in CA-G.R. CV No. In its Answer, Amended Answer, and Rejoinder, petitioner
42062 and CA-G.R. SP No. 32198. specifically denied the material averments of the Complaint and
Reply, and interposed its counterclaims arguing that as early as one
Costs against petitioners PSI and Dr. Miguel Ampil. week after respondent Chua had been admitted to its hospital, Dr.
Rody Sy, her attending physician, had already given instructions for
her to be discharged, but respondents insisted that Chua remain in
SO ORDERED. confinement; that, through its staff, petitioner accordingly
administered medical examinations, all of which yielded negative
G.R. No. 150355             July 31, 2006 results; that respondent Ty voluntarily undertook, jointly and
severally, to pay the hospital bills for both patients; that although
MANILA DOCTORS HOSPITAL, petitioner, respondent Ty paid up to P435,000.00, more or less, she reneged on
vs. her commitment to pay the balance in violation of the Contract for
SO UN CHUA and VICKY TY, respondents. Admission and Acknowledgment of Responsibility for Payment
dated October 30, 1990 which she voluntarily executed; that she
 P a g e | 139

signed a Promissory Note on June 5, 1992 for the unpaid balance of c) P50,000.00 as attorney's fees and the amount of
P1,075,592.95 and issued postdated checks to cover the same; that P50,000.00 as litigation costs.
no such undue pressure had been imposed upon respondent Chua to
settle the bills, the truth being that, as a matter of standard procedure, SO ORDERED.5
the reminders to settle the bills were transmitted not to the patients
but to their relatives who usually undertook to pay the same; that In brief, the RTC held that the removal of the facilities of the room
respondent Ty deliberately evaded the staff of the Credit and triggered the hypertension of respondent Chua; that the petitioner
Collection Department; that the cutting-off of the telephone line and acted in bad faith in removing the facilities without prior notice; that
removal of the air-conditioning unit, television set, and refrigerator her condition was aggravated by the pressure employed by the
cannot constitute unwarranted actuations, for the same were resorted administration upon her to pay the hospital bills; that the food
to as cost-cutting measures and to minimize respondents' charges always came late as compared to the other patients; that the beddings
that were already piling up, especially after respondent Ty refused to and clothes of respondent Chua were no longer changed and, as a
settle the balance notwithstanding frequent demands; that respondent result, bed sores emerged on her body; that there was an utter lack of
Ty evaded the staff when the latter attempted to inform her that the medical attendance; that, because of these, respondent Chua suffered
room facilities will be cut off to minimize the rising charges; and from self-pity and depression; that petitioner clearly discriminated
that respondents instituted the present civil case purposely as against the respondents; that respondent Ty had no choice but to sign
leverage against the petitioner after the latter had filed criminal the promissory notes in order to secure the release of her mother,
charges for violation of Batas Pambansa (B.P.) Blg. 22 against respondent Chua; that the foregoing actuations constitute an abuse of
respondent Ty for issuing checks, later dishonored, totaling rights; that petitioner failed to establish the pecuniary loss it suffered
P1,075,592.95, the amount referring to the unpaid hospital bills. In and, hence, it is not entitled to compensatory damages; and that,
its compulsory counterclaim, petitioner prayed, among other items, since the promissory note is a contract of adhesion, the petitioner is
for the award of no less than P1,000,000.00 as compensatory not entitled to the award of attorney's fees as stipulated thereon.
damages due to the filing of a malicious and unfounded suit, and, in
its permissive counterclaim, petitioner prayed for respondents to pay
P1,075,592.95, the amount representing the due and demandable On appeal to the CA, the petitioner assigned the following errors:
obligation under the Promissory Note dated June 5, 1992, including
the stipulated interest therein and the 25 percent of the total amount A.
due as attorney's fees.
THE HONORABLE TRIAL COURT COMMITTED
During pre-trial, the parties stipulated on the following issues: First, REVERSIBLE ERROR BY FINDING THE
whether the respondents are liable to the petitioner to pay the ACTUATIONS OF THE ADMINISTRATION OF
hospital bills arising from the hospitalization of respondent Chua and DEFENDANT-APPELLANT TO BE IN BAD FAITH,
Judith Chua; and second, whether the parties are entitled to their OPPRESSIVE AND UNNECESSARY AS TO MAKE IT
respective claims for damages.3 Furthermore, the parties stipulated LIABLE TO PLAINTIFFS-APPELLEES FOR
on the following facts: a) Judith Chua was confined from June 14, DAMAGES AND ATTORNEY'S FEES.
1991 to May 2, 1992; b) respondents failed to pay the balance
despite repeated reminders; c) the said reminders referred to the B.
hospital bills of respondent Chua and Judith Chua; d) one of the
attending physicians of respondent Chua was Dr. Rody Sy; and e) THE HONORABLE TRIAL COURT COMMITTED
the petitioner ordered the removal of the facilities in question from REVERSIBLE ERROR BY NOT RULING UPON THE
the room of its patient, respondent Chua, with the qualification that PERMISSIVE COUNTERCLAIM OF DEFENDANT-
they were constrained to discontinue the same after the APPELLANT WITH RESPECT TO THE P1,075,592.95
representative of respondent Chua refused to update the hospital bills REPRESENTING THE HOSPITAL BILL OF
or refused to transfer her to semi-deluxe room or ward to lessen PLAINTIFFS-APPELLEES, WHICH OBLIGATION IS
costs.4 NOT DISPUTED AND WHICH AMOUNT WAS NEVER
CONTROVERTED BY PLAINTIFFS-APPELLEES.6
On September 30, 1997, the RTC rendered its Decision in favor of
the respondents, the dispositive portion of which states: On October 2, 2001, the CA promulgated its Decision the dispositive
portion of which reads:
WHEREFORE, premises considered, judgment on the
complaint is hereby rendered in favor of the [respondents] IN VIEW OF ALL THE FOREGOING, the appealed
as against the [petitioner] as follows: Decision is hereby AFFIRMED with the modification that
the award of moral damages, exemplary damages as well as
[O]rdering the [petitioner] to pay the [respondents] the attorney's fees is reduced to Seventy Five Thousand Pesos
following, to wit: (P75,000.00), Thirty Thousand Pesos (P30,000.00) and
Twenty Thousand Pesos (P20,000.00), respectively.
a) P200,000.00 as moral damages; Litigation costs are hereby deleted. Costs against appellant.

b) P100,000.00 as exemplary damages; and SO ORDERED.7

 P a g e | 140

Apart from the reduction in the award of damages, the CA affirmed and the regeneration of the people as a whole becomes more visibly
all salient portions of the RTC Decision and declined to disturb the attainable. In the institution of cost-cutting measures, the hospital
findings of fact. has a right to reduce the facilities and services that are deemed to be
non-essential, such that their reduction or removal would not be
Petitioner is now before this Court raising essentially the same detrimental to the medical condition of the patient.18 For the
grounds heard by the CA. moment, the question to be considered is whether the subject
facilities are indeed non-essential – the air-conditioner, telephone,
Incidentally, with respect to the related criminal case against television, and refrigerator – the removal of which would cause the
respondent Ty, this Court, on September 27, 2004, promulgated its adverse health effects and emotional trauma the respondents so
Decision entitled Ty v. People of the Philippines,8 which affirmed claimed. Corollary to this question is whether the petitioner observed
the decisions of the lower courts finding respondent Ty guilty of the diligence of a good father of the family19 in the course of
violating B.P. Blg. 22 and ordering her to pay the private ascertaining the possible repercussions of the removal of the
complainant, herein petitioner, the total amount of the dishonored facilities prior to the removal itself and for a reasonable time
checks. thereafter, with a view to prevent damage.20

The petition is impressed with merit. After an extensive analysis of the record, it becomes rather
worrisome to this Court that the courts a quo unreservedly drew their
conclusions from the self-serving and uncorroborated testimonies of
While, as a rule, only questions of law may be raised in a petition for the respondents the probative value of which is highly
review on certiorari under Rule 45, under certain exceptions, the questionable.21 We hold that the respondents failed to prove the
Court may re-examine the evidence presented by the parties during damages so claimed.
the trial. At least four exceptions exist in this case, namely: (a) when
the conclusion is a finding grounded entirely on speculation,
surmises, or conjectures; (b) when the judgment is based on a The evidence in the record firmly establishes that the staff of the
misapprehension of facts; (c) when the findings of fact are premised petitioner took proactive steps to inform the relatives of respondent
on the supposed absence of evidence and contradicted by the Chua of the removal of facilities prior thereto, and to carry out the
evidence on record; and (d) when the courts a quo manifestly necessary precautionary measures to ensure that her health and well-
overlooked certain relevant facts not disputed by the parties and being would not be adversely affected: as early as around two weeks
which, if properly considered, would justify a different conclusion. 9 after her admission on October 30, 1990, to the time when the
facilities had been removed sometime in the middle of May 1992,22
and even up to the point when she actually left the premises of the
The principal questions are, first, whether the actuations of the hospital three weeks later, or during the first week of June 1992,23
petitioner amount to actionable wrongs, and second, whether the the medical condition of respondent Chua, as consistently and
counterclaims of the petitioner can be backed up by the measure of indisputably confirmed by her attending physician, Dr. Rody Sy, a
preponderant evidence. cardiologist, who was called as witness for both parties,24 whom
even respondent Chua repeatedly praised to be "my doctor" and "a
In brief, the courts a quo concurred in the holding that the petitioner very good doctor"25 at that, and whose statements at times had been
and its staff failed to take into consideration the physical condition corroborated as well by Sister Mary Philip Galeno, SPC, the
of its patient, respondent Chua, when it removed the facilities Administrator of the hospital and who also happens to be a
provided in her room;10 that the removal of these facilities, namely, registered nurse, had been "relatively well,"26 "ambulatory,"27
the air-conditioner, telephone lines, television, and refrigerator, "walking around in the room,"28 and that she was "able to leave the
aggravated the condition of the patient, triggered her hypertension, hospital on her own without any assistance;"29 that although she
and caused her blood pressure to fluctuate,11 considering that there complained of symptoms such as dizziness, weakness, 30 and
was no proper ventilation in the room.12 In view of the foregoing, the abdominal discomfort,31 Dr. Sy requested several medical
courts a quo concluded that the actuations of the petitioner were examinations, such as the laboratory tests, renal tests, MRI,
oppressive, unnecessary,13 and anti-social,14 done in bad faith ultrasound, and CT scan,32 all of which were administered after
without proper notice,15 with no intention other than to harass or procuring the consent of respondent Chua's family33 as admitted by
16 17
irritate the respondents, all of which constitute an abuse of rights. respondent Ty herself,34 and even called on other specialists, such as
a neurologist, endocrinologist, and gastroenterologist, to look into
We do not agree. The conclusions of the courts a quo are either her condition35 and conduct other tests as well36 according to their
haphazard conjectures, or founded on a misapprehension of facts. fields of specialty, all of which yielded no serious finding;37 that her
The record is replete with evidence that justifies a different illnesses were "lifelong illnesses"38 at a stage where they cannot be
conclusion. totally removed or abolished,39 making it clear to her family that
"one hundred percent recovery is not possible" despite being given
Indeed the operation of private pay hospitals and medical clinics is daily medication in the hospital;40 but that her condition,
impressed with public interest and imbued with a heavy social nonetheless, is not serious,41 as the blood pressure is more or less
responsibility. But the hospital is also a business, and, as a business, controlled and within acceptable limits,42 "not that critical to
43
it has a right to institute all measures of efficiency commensurate to precipitate any 44
acute attack," nor likely to fall into any
the ends for which it is designed, especially to ensure its economic emergency, nor yet does she require continuous or prolonged
45
viability and survival. And in the legitimate pursuit of economic hospitalization since she was stable enough to be treated at home
considerations, the extent to which the public may be served and and on an "out-patient" basis, so much so that Dr. Sy encouraged her
cured is expanded, the pulse and life of the medical sector quickens, to exercise and avoid resting all the
 P a g e | 141

time,46 and recommended that "anytime she may be discharged"47 Q — Do you agree with me that hypertension is triggered
sometimes by excitement, anger or (sic) a person suffering
even in just "two weeks after confinement,"48 the propriety of his from such illness?
order of discharge concurred upon by the other specialists as well,49
had it not been for respondents' insistence to stay in the hospital in A — Hypertension can be triggered by anything.
view of their hope for absolute recovery50 despite the admission of
respondent Chua herself that she cannot anymore be totally cured. 51 Court:

It is also undisputed that the hospital administrator, Sister Galeno, Q — And even in other words the discomfort can also
prior to the removal of the facilities, consulted the attending trigger?
physician, Dr. Sy.52 To Sister Galeno, also a registered nurse, the
matter of removal and its possible repercussions on the health of the A — Sometimes mental stress can trigger.
patient, as a matter of hospital policy, is a critical and sensitive
maneuver, and, hence, it is carried out only after discussing with the
doctors to evaluate all important factors.53 The fact of prior xxxx
consultation54 as well as the medical determination to the effect that
it was safe to remove the facilities and would cause no harmful Court:
effect55 had been amply corroborated by respondent Chua's own
doctor himself.56 When Dr. Sy testified as rebuttal witness for the Q — You mentioned earlier that this hypertension may be
respondents themselves and whose credibility respondents failed to triggered mentally?
impeach, he categorically stated that he consented to the removal
since the removal of the said facilities would not by itself be A — Yes, Your Honor.
detrimental to the health of his patient, respondent Chua.57 And in
this respect, he had been advising respondent Ty, the daughter of the
Court:
patient, that the facilities, such as the air-conditioner, television,
refrigerator, and telephone, are not absolutely necessary, and, that
although they may add to the comfort of the patient, if absent, they Q — Will the removal of these facilities not affect the
will not cause any significant deterioration of her condition,58 given patient including the relatives?
that, in his experience as a cardiologist, and after personally
attending respondent Chua on a daily basis before, during, and after A — It may to a certain extent. And well, maybe the days
the removal and even up to the time of her actual discharge, 59 he after the removal would prove that fluctuation in blood
concluded that many hypertensive and diabetic patients, as in her pressure are within acceptable limits.65
case, do not at all need in particular an air-conditioning unit, among
the other facilities aforementioned.60 And, contrary to the findings of With respect to the findings of the courts a quo that bed sores
the courts a quo and the self-serving testimonies of respondents that appeared on the body of respondent Chua, that she suffered from
the lack of ventilation, after the removal of the air-conditioner, depression after the disconnection of the said facilities, that her
triggered her hypertension, Dr. Sy categorically stated that during his private midwives were barred, and that the delivery of food was
daily rounds with the patient he was certain that, although admittedly delayed, this Court holds, as above, that these conclusions are bereft
the blood pressure in general would fluctuate daily, there had been of sound evidentiary basis, self-serving and uncorroborated as they
no adverse effect on her, and that her blood pressure were within are. Again, Dr. Sy affirmed that during the daily rounds he would
acceptable limits,61 especially considering that he treated the patient make on the patient, he did not detect any skin lesion or any other
on a daily basis up to the point of actual discharge, 62 and abnormality up to the time she was actually discharged. 66 Nor did he
accordingly, as confirmed by the medical records, he made no find any sign of depression, although, admittedly, he observed that
change in the medications thereafter.63 In support of Dr. Sy's she had been "very angry" because of the removal of the facilities.67
findings, Sister Galeno, testified that she knew the condition of the All the while he did not receive any complaint from respondent
ventilation of the patient's deluxe room, located at the fifth floor, Chua indicating that she suffered from the foregoing infirmities,68
even without the air-conditioning, notably in times of brownout, and considering that it is the responsibility of the family of the patient to
that there had been enough ventilation since the grilled window of specifically inform the attending physician or the nurses during their
that room was large enough which, if opened, would permit rounds whatever they feel is important, or if there were any new
sufficient ventilation.64 The Court finds that the premise of the RTC developments since the last visit.69 As corroborated by Sister Galeno,
judgment refers merely to hypothetical statements which fail to throughout respondent Chua's confinement, she never received any
establish any clear and direct link to the injury allegedly suffered by complaint from the latter or her relatives that she had not been
the patient: attended to by the nursing staff.70 Worth noting again is the fact that
the nursing staff and the attending physicians, which included Dr.
Q — You found it safe to remove these facilities from the Sy, in accordance with hospital policy, would routinely make their
room of the patient suffering from diabetes and rounds on a daily basis, or would visit the patient whenever they are
hypertension? called for any problem,71 and, in the case of the specialists other than
the attending physician, they would visit the patient about once a
A — Yes, Sir. Many hypertensive, diabetic patients do not week.72 The nurses, on the other hand, would make their rounds
need air-conditioning, or T.V. or refrigerator. more frequently, that is, at least once per shift, or every eight hours.73
Apart from the self-serving statements of respondents, which by now
 P a g e | 142

have become rather indicative of being mere afterthoughts, there is knowledge of expert witnesses. For whether a physician or
no clear showing from the record that the petitioner and its medical surgeon has exercised the requisite degree of skill and care
staff deviated from the foregoing policy and practice, nor had they in the treatment of his patient is, in the generality of cases, a
been called upon to look into the alleged physical reactions or matter of expert opinion. The deference of courts to the
emotional trauma respondent Chua claims to have suffered during expert opinions of qualified physicians stems from its
and after the removal of the facilities. It must be emphasized that, as realization that the latter possess unusual technical skills
stated above, respondent Chua herself explicitly found Dr. Sy to be a which laymen in most instances are incapable of
"very good doctor" because he personally attended to her "almost intelligently evaluating. Expert testimony should have been
every hour."74 And throughout her confinement, Dr. Sy positively offered to prove that the circumstances cited by the courts
stated that her family employed a private midwife who attended to below are constitutive of conduct falling below the standard
her all the time.75 of care employed by other physicians in good standing
when performing the same operation. It must be
The evidence in the record overwhelmingly demonstrates that remembered that when the qualifications of a physician are
respondent Chua had been adequately attended to, and this Court admitted, as in the instant case, there is an inevitable
cannot understand why the courts a quo had declared that there was presumption that in proper cases he takes the necessary
an "utter lack of medical attendance," or that her health suffered precaution and employs the best of his knowledge and skill
during the period after the removal of the facilities. The Court finds in attending to his clients, unless the contrary is sufficiently
that the facilities in question are non-essential for the care of established. This presumption is rebuttable by expert
respondent Chua and, hence, they may be lessened or removed by opinion which is so sadly lacking in the case at bench.78
the petitioner for the sake of economic necessity and survival.
With respect to the propriety of the notice of removal of facilities,
Though human experience would show that the deactivation of the the evidence shows that the hospital staff, accompanied by Sister
air-conditioner may cause a temperature differential that may trigger Gladys Lim, SPC, Finance Administrative Assistant of the hospital,79
some physical discomfort, or that the removal of entertainment through written and verbal notices as per hospital policy, forewarned
facilities such as the television set, or the disconnection of the respondents, through respondent Ty and her sister, Judith Chua,
communication devices such as the telephone, may cause some of the impending removal of the facilities over a week beforehand80
exasperation on the part of the one who benefits from these, in view of their obstinate refusal to vacate and transfer to a lower
nevertheless, all things considered, and given the degree of diligence rate room81 or to update the mounting hospital bills82 which, by then,
the petitioner duly exerted, not every suppression of the things that had swollen to approximately one million pesos.83 Respondent Ty
one has grown accustomed to enjoy amounts to an actionable wrong, refused to read many of the written notices sent by the Credit
nor does every physical or emotional discomfort amount to the kind
of anguish that warrants the award of moral damages under the Department.84 After repeated attempts to contact respondent Ty85 and
general principles of tort. The underlying basis for the award of tort before the actual removal of the facilities, the staff of the petitioner
damages is the premise that an individual was injured in tried to personally serve the final notice dated April 23, 1992,86
contemplation of law. Thus, there must first be the breach of some signed by Sister Gladys Lim, addressed to respondent Ty, which
duty and the imposition of liability for that breach before damages adopted the tenor of the prior verbal warnings, and which expressly
may be awarded; it is not sufficient to state that there should be tort and sternly warned the respondents that the hospital shall be
liability merely because the plaintiff suffered some pain and constrained to take legal action and that they shall be compelled to
suffering.76 transfer the patient, respondent Chua, to a lower rate room unless the
balance could be satisfied.87 Respondent Ty, for no justifiable
Moreover, this Court must reiterate the standard of tort to arrive at a reason, and sticking to her inclination to avoid the staff, refused to
proper award for damages premised on matters that suggest the receive or acknowledge this letter as well.88 Worth noting is that
application of medical knowledge, especially in the description of Sister Galeno, testified that, as a matter of hospital policy the tenor
the causal link between external or environmental factors, on one of which respondents, by virtue of the Contract for Admission dated
hand, and their effect unto the physical or emotional health of the October 30, 1990, agreed to comply with,89 the hospital can only cut
patient, on the other, expert opinion, as discussed in Cruz v. Court of off the non-essential facilities – and only in extreme cases 90 – if the
Appeals,77 is generally required: patient occupies a private room all to herself; had the room been
semi-private shared by other patients, or had it been the ward, the
All three courts below bewail the inadequacy of the hospital cannot disconnect the facilities since this would unduly
facilities of the clinic and its untidiness; the lack of prejudice the other patients. But respondent Chua herself insisted on
provisions such as blood, oxygen, and certain medicines; staying in a private room despite her being fully aware of the
the failure to subject the patient to a cardio-pulmonary test ballooning charges,91 and even if she could have freely gone home
prior to the operation; the omission of any form of blood anytime to her condominium unit which, as admitted, was equipped
typing before transfusion; and even the subsequent transfer with an air-conditioner.92 With respect to the "pressure" and
of Lydia to the San Pablo Hospital and the reoperation "harassment" respondents allegedly suffered daily whenever the
performed on her by the petitioner. But while it may be true hospital staff would follow up the billing during odd hours, or at
that the circumstances pointed out by the courts below 10pm, 11pm, 12 midnight, 1am, or 2am,93 this averment had been
seemed beyond cavil to constitute reckless imprudence on convincingly refuted by the witnesses for the petitioner, namely,
the part of the surgeon, this conclusion is still best arrived Editha L. Vecino, the Head of Credit and Collection, and Sister
at not through the educated surmises nor conjectures of Galeno, in that the Credit and Collection Department would only
laymen, including judges, but by the unquestionable hold office hours from 8am to 5pm and, hence, it is impossible to
"harass" the respondents during the times they so claimed.94
 P a g e | 143

The courts a quo found that respondent Ty had "no choice but to part thereof because he refuses to comply with some reasonable
sign the promissory note in order for her mother to be released from condition subject to which he entered them. In all cases, the
the hospital,"95 thus suggesting that the hospital refused to actually condition of this kind of restraint must be reasonable in the light of
discharge or bodily release its patient, respondent Chua, until the circumstances.112 At any rate, as stated above, the patient is free
arrangements had been made to settle the charges. to leave the premises, even in the ostensible violation of these
conditions, after being momentarily interrupted by the hospital staff
While there are portions of the testimonies of the witnesses for the for purposes of informing him of those reasonable conditions, such
petitioner which state that although, as per standard procedure, the as the assessment of whether the patient is fit to leave, insane, or
96
patient "cannot leave" the hospital without the "discharge," 97 suffering from a contagious disease, etc., or simply for purposes of
"clearance" or "gate pass" issued only after making a demand to settle the bill. If the patient chooses to abscond
or leave without the consent of the hospital in violation of any of the
arrangements on the settlement of bills had been made, still, it must conditions deemed to be reasonable under the circumstances, the
98

be understood that these are only demonstrative of the precondition hospital may nonetheless register its protest and may choose to
that a patient cannot step out of the premises "without the consent" pursue the legal remedies available under law, provided that the
of the hospital, or, in other words, that the "clearance" merely hospital may not physically detain the patient, unless the case falls
indicates that the hospital expressly consented to the actual release under the exceptions abovestated.
99
of the patient, but, even without its consent, the patient is still free
to leave "anytime" as a matter of policy, in spite of the refusal to Authorities are of the view that, ordinarily, a hospital, especially if it
issue a "clearance" or "gate pass,"100 or even in cases where the is a private pay hospital,113 is entitled to be compensated for its
101
accounts have not yet been liquidated or settled, or yet even if no services, by either an express or an implied contract, and if no
promissory note or post-dated check were executed in favor of the express contract exists, there is generally an implied agreement that
petitioner, as testified by no less than Sister Galeno,102 and the patient will pay the reasonable value of the services rendered;114
103
corroborated by Editha Vecino; and that, petitioner, a private when a hospital treats a patient's injuries, it has an enforceable claim
104
hospital established for profit, being also a business, by warning for full payment for its services, regardless of the patient's financial
respondents that it shall withhold clearance, is simply exercising its status.115 At this juncture, it must be noted that there is testimony,
right to protest against an absconding patient as a precursor to avail though to a degree disputable, to the effect that the execution of the
of other appropriate legal remedies; that, on the contrary, the promissory note and the issuance of postdated checks were
respondents opted not to leave because of their own promise not to conditions imposed not by the petitioner but voluntarily offered by
leave unless the hospital bills were fully settled;105 that the the counsel for respondents.116 At any rate, however, this Court
accusations found in the Demand Letter dated May 19, 1992, and holds, in view of the foregoing authorities, that the requirement to
signed by the counsel for the respondents,106 particularly, that the have the relative of respondent Chua to execute a promissory note as
petitioner "refused to discharge the patient, [respondent Chua,] part of the arrangement to settle the unpaid obligations is a formality
despite orders from the attending physician, Dr. Rody Sy," had all that converts any implied contract into written form and, moreover,
been refuted by Sister Galeno when she read its contents in front of amounts to a reasonable condition, the non-fulfillment of which, in
the counsel for respondents, emphatically telling him that "we are itself, however, as discussed, cannot allow the hospital to detain the
not detaining his clients;" that "[respondent Ty] was the one who patient. It must also be stressed, contrary to the findings of the courts
told us that they are not going to leave the hospital unless they have a quo, that such an agreement embodied in a promissory note, as
fully paid the hospital;"107 and that, most importantly, no physical well as the Contract for Admission and Acknowledgment of
restraint upon the person of respondent Chua or upon the person of Responsibility for Payment dated October 30, 1990, do not become
her relatives had been imposed by the staff. contracts of adhesion simply because the person signing it was under
stress that was not the result of the actions of the hospital,117
Authorities, including those of common law origin, explicitly especially taking into account that there is testimony to the effect
declare that a patient cannot be detained in a hospital for non- that respondent Ty signed the Promissory Note dated June 5, 1992 in
118
payment of the hospital bill. If the patient cannot pay the hospital or the presence of counsel and acting under his advise.
physician's bill, the law provides a remedy for them to pursue, that
is, by filing the necessary suit in court for the recovery of such fee or But as to the propriety of the circumstances surrounding the issuance
bill.108 If the patient is prevented from leaving the hospital for his of the postdated checks to cover the amount stated in the Promissory
inability to pay the bill, any person who can act on his behalf can Note dated June 5, 1992, this Court must refer to the discussion of
apply in court for the issuance of the writ of habeas corpus.109 the recent case of Ty v. People of the Philippines119 where this Court
affirmed the conviction of respondent Ty for the issuance of
The form of restraint must be total; movement must be restrained in bouncing checks addressed to the petitioner herein. While the instant
all directions. If restraint is partial, e.g., in a particular direction with case is to be distinguished from the Ty case in nature, applicable
freedom to proceed in another, the restraint on the person's liberty is law, the standards of evidence, and in the defenses available to the
not total.110 However, the hospital may legally detain a patient parties, hence, the judgment of conviction in that case should not at
against his will when he is a detained or convicted prisoner, or when all prejudice the disposition of this case, even if the facts coincide,
the patient is suffering from a very contagious disease where his nonetheless, for purposes of convenience and instructive utility, the
release will be prejudicial to public health, or when the patient is Court quotes the relevant portions:
mentally ill such that his release will endanger public safety, 111 or in
other exigent cases as may be provided by law. Moreover, under the In this case, far from it, the fear, if any, harbored by Ty was
common law doctrines on tort, it does not constitute a trespass to the not real and imminent. Ty claims that she was compelled to
person to momentarily prevent him from leaving the premises or any issue the checks a condition the hospital allegedly
 P a g e | 144

demanded of her before her mother could be discharged for Moreover, for the defense of state of necessity to be
fear that her mother's health might deteriorate further due to availing, the greater injury feared should not have been
the inhumane treatment of the hospital or worse, her mother brought about by the negligence or imprudence, more so,
might commit suicide. This is speculative fear; it is not the the willful inaction of the actor. In this case, the issuance of
uncontrollable fear contemplated by law. the bounced checks was brought about by Ty's own failure
to pay her mother's hospital bills.
To begin with, there was no showing that the mother's
illness was so life-threatening such that her continued stay The Court also thinks it rather odd that Ty has chosen the
in the hospital suffering all its alleged unethical treatment exempting circumstance of uncontrollable fear and the
would induce a well-grounded apprehension of her death. justifying circumstance of state of necessity to absolve her
Secondly, it is not the law's intent to say that any fear of liability. It would not have been half as bizarre had Ty
exempts one from criminal liability much less petitioner's been able to prove that the issuance of the bounced checks
flimsy fear that her mother might commit suicide. In other was done without her full volition. Under the
words, the fear she invokes was not impending or circumstances, however, it is quite clear that neither
insuperable as to deprive her of all volition and to make her uncontrollable fear nor avoidance of a greater evil or injury
a mere instrument without will, moved exclusively by the prompted the issuance of the bounced checks.
hospital's threats or demands.
Parenthetically, the findings of fact in the Decision of the
Ty has also failed to convince the Court that she was left trial court in the Civil Case for damages filed by Ty's
with no choice but to commit a crime. She did not take mother against the hospital is wholly irrelevant for purposes
advantage of the many opportunities available to her to of disposing the case at bench. While the findings therein
avoid committing one. By her very own words, she may establish a claim for damages which, we may add,
admitted that the collateral or security the hospital required need only be supported by a preponderance of evidence, it
prior to the discharge of her mother may be in the form of does not necessarily engender reasonable doubt as to free
postdated checks or jewelry. And if indeed she was coerced Ty from liability.120
to open an account with the bank and issue the checks, she
had all the opportunity to leave the scene to avoid In view of the foregoing, the Court therefore holds that the courts a
involvement. quo committed serious errors in finding that the petitioner was
"biased,"121 "discriminated" against the respondents,122 and
Moreover, petitioner had sufficient knowledge that the "purposely intended to irritate"123 or "harass"124 them; that it "acted in
issuance of checks without funds may result in a violation bad faith in removing the facilities without prior notice;"125 and that
of B.P. 22. She even testified that her counsel advised her its acts were "anti-social."126 The aforequoted declarations of the
not to open a current account nor issue postdated checks witnesses, significant portions of which this Court considers as
"because the moment I will not have funds it will be a big expert testimony, are reliable and remain considerably trustworthy to
problem." Besides, apart from petitioner's bare assertion, controvert respondents' assertions as well as to reverse the
the record is bereft of any evidence to corroborate and conclusions of fact and law of the CA and the RTC that respondent
bolster her claim that she was compelled or coerced to Chua suffered the physical and emotional anguish so claimed, and
cooperate with and give in to the hospital's demands. so, for these reasons, the Court holds that the petitioner inflicted no
actionable wrong.
Ty likewise suggests . . . that the justifying circumstance of
state of necessity under par. 4, Art. 11 of the Revised Penal This Court observes that the courts a quo awarded both respondents
Code may find application in this case. moral damages. But it is well-settled that in case of physical injuries,
with some exceptions,127 moral damages are recoverable only by the
We do not agree. The law prescribes the presence of three party injured and not by her spouse, next of kin, or relative who
requisites to exempt the actor from liability under this happened to sympathize with the injured party.128 Hence, even if the
paragraph: (1) that the evil sought to be avoided actually courts a quo were correct in their basis for damages, they should
exists; (2) that the injury feared be greater than the one have declined to award damages to respondent Ty.
done to avoid it; (3) that there be no other practical and less
harmful means of preventing it. The last issue to be resolved is the question whether the
counterclaims of the petitioner are supported by a preponderance of
In the instant case, the evil sought to be avoided is merely evidence.
expected or anticipated. If the evil sought to be avoided is
merely expected or anticipated or may happen in the future, We agree with the petitioner that the courts a quo seriously erred in
this defense is not applicable. Ty could have taken mistaking the case of its compulsory counterclaim for its permissive
advantage of an available option to avoid committing a counterclaim and for failing to consider the evidence which
crime. By her own admission, she had the choice to give impressively supports the latter. First, for failure without justifiable
jewelry or other forms of security instead of postdated cause of respondents' counsel to comment on the Partial Formal
checks to secure her obligation. Offer of Evidence dated February 14, 1996129 filed by the petitioner,
the RTC issued an order during the course of the trial, which counsel
for respondents neither contested nor raised on appeal, admitting
Exhibits "1" to "16", together with their submarkings and the
 P a g e | 145

purposes for which the same were offered,130 all of which had also in Hospitals and Medical Clinics on Grounds of Non-Payment of
been previously authenticated and their contents verified by the Hospital Bills or Medical Expenses," which declares, among others,
witnesses for the petitioner.131 These documents include the Contract that it shall be unlawful for any hospital or medical clinic to cause
for Admission of respondent Chua dated October 30, 1990, duly directly or indirectly the detention of patients for non-payment, in
executed by respondent Ty, incorporating therein the rules and part or in full, of their hospital bills,144 and, furthermore, requires
regulations of the hospital, including the duty to understand the patients who have fully recovered and are financially incapable to
same132 as well as the undertaking of respondent Ty to be jointly and settle the hospitalization expenses to execute a promissory note, co-
severally liable for the payment of the hospital bills of respondent signed by another individual, to the extent of the unpaid obligation
Chua;133 the Promissory Note dated June 5, 1992 in the amount of before leaving the hospital.145 While this Court may have touched
P1,075,592.95 duly executed by respondent Ty in favor of the upon these matters in the adjudication of the instant case, it must be
petitioner agreeing to be jointly and severally liable to pay the stated that this decision should in no way preempt any constitutional
unpaid obligations of respondent Chua and Judith Chua, including challenge to the provisions of Senate Bill No. 337 if passed into law,
interest and attorney's fees in case of default;134 the Undertakings bearing in mind the standards for the exercise of the power of
signed by respondent Ty dated March 3, 1992 and April 7, 1992 to judicial review146 as well as the recognition that the tenor of the bill
maintain regular deposits;135 and the credit memos and statements of may adjust with the times, or that the bill itself may fail to pass,
account that support the amount referring to the unpaid obligation.136 according to the dynamism of the legislative process, especially in
Second, the parties stipulated during pre-trial that respondents failed light of the objections interposed by interest groups to date.147
to pay the balance despite repeated reminders.137 And third,
respondent Ty in open court identified and admitted that she signed WHEREFORE, the petition is GRANTED. The Decision of the
the Contract of Admission dated October 30, 1990 as well as the Court of Appeals dated October 2, 2001, together with the Decision
Undertakings dated March 3, 1992 and April 7, 1992 but which, for dated September 30, 1997 of the Regional Trial Court in Civil Case
no justifiable reason, she "did not bother to read,"138 and, what is No. 63958, is REVERSED and SET ASIDE. Another judgment is
more, she repeatedly admitted during the course of the trial that she entered dismissing the Complaint and ordering respondents, jointly
failed to fully settle the foregoing hospital bills.139 In fact, while the and severally, to pay the petitioner the amount of P865,592.95, with
Ty case cannot control the incidents of the instant case as heretofore stipulated interest of 12 percent reckoned from the date of
stated, it is still worth mentioning, at least for informative purposes, extrajudicial demand until full payment, and 12 percent of the total
the findings of this Court in Ty with respect to respondents' amount due as attorney's fees.
obligations to the petitioner:
No pronouncement as to costs.SO ORDERED.
Ty's mother and sister availed of the services and the
facilities of the hospital. For the care given to her kin, Ty Supreme Court of Minnesota.
had a legitimate obligation to pay the hospital by virtue of
her relationship with them and by force of her signature on
her mother's Contract of Admission acknowledging Jocelyn DICKHOFF by her parents and natural guardians
responsibility for payment, and on the promissory note she Joseph DICKHOFF and Kayla Dickhoff, Respondents, v. Rachel
executed in favor of the hospital.140 GREEN, M.D., et al., Appellants.

In view of all these findings, the Court earnestly disagrees with the Syllabus by the Court
sweeping conclusion of the CA that "[Petitioner] failed to present
any iota of evidence to prove his claim,"141 a statement apparently A medical-malpractice claim based on a physician's failure to
referring to the permissive counterclaim of P1,075,592.95. However, diagnose cancer is not barred as a mere “loss of chance” (or reduced-
with respect to the compulsory counterclaim predicated on the filing chance) claim when the misdiagnosis resulted in a delay in treatment
of a baseless suit and injury to its reputation, petitioner did not raise that makes it more likely than not that the patient will not survive the
this matter on appeal and, hence, is deemed to have waived the cancer. Kay Nord Hunt, Stephen C. Rathke, Lommen, Abdo, Cole,
same. King & Stageberg, P.A., Minneapolis, MN, for appellants. William
M. Hart, Meagher & Geer, P.L.L.P., Minneapolis, MN, and Steven
But the Court in Ty made a partial finding on the civil liability of R. Schwegman, James S. McAlpine, Quinlivan & Hughes, P.A., St.
respondent Ty with respect to the amount covered by seven of the Cloud, MN, for respondents.
several dishonored checks she issued equivalent to
Considered and decided by KALITOWSKI, Presiding Judge;
142
P210,000.00. Since this amount forms a fraction of her total civil MINGE, Judge; and ROSS, Judge.
liability, then this amount, in deference to Ty, should be deducted OPINION
therefrom. ROSS, Judge.

The claim for attorney's fees, as stipulated under the Promissory This medical-malpractice case involves a delayed diagnosis of
Note dated June 5, 1992, should be reduced for being unreasonable potentially terminal cancer in a newborn. The baby's mother alleges
under the circumstances, from 25 percent to 12 percent of the total that she showed the pediatrician a bump on the newborn shortly after
amount due.143 the birth and at multiple appointments in the year that followed. The
physician did not note the bump on the child's medical chart until her
As a final word, the Court takes judicial notice of the pending Senate one-year checkup, after which the bump was diagnosed to be
Bill No. 337, entitled "An Act Prohibiting the Detention of Patients
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alveolar rhabdomyosarcoma, a rare form of childhood cancer. Kayla Jocelyn that are permanent or fatal and will result in future expenses,
and Joseph Dickhoff sued their daughter Jocelyn's physician, Dr. pain, disability, and disfigurement.
Tollefsrud, and Family Practice Medical Center of Willmar, alleging
that reasonable care would have led to an earlier diagnosis while the The Dickhoffs planned to have two experts testify at trial. Dr. James
disease was curable. The district court dismissed the medical- Gelbmann, a family-practice physician at the Brainerd Medical
malpractice claim as a reduced-chance claim barred in Minnesota. It Center, would have testified on the standard of care and opined that
also denied damages based on the recurrence of the cancer, holding Dr. Tollefsrud deviated from it. Dr. Edwin Forman, a pediatric
that the parents' expert's affidavit did not establish that it was more hematology and oncology physician, would have opined on the
probable than not that the recurrence was the result of negligence. element of causation. This appeal focuses mainly on Dr. Forman's
We reverse because the medical-malpractice claim is not a claim for opinion.
reduced chance and the expert affidavit supports the allegation that
the physician's negligence caused the child's chances of recurrence Dr. Forman averred in affidavits that, had the diagnosis occurred at
to move from unlikely to probable. or shortly after the bump was noticed while Jocelyn was a neonate,
her cancer more likely than not would have been curable. But
FACTS because Jocelyn's cancer progressed to stage III or IV without a
diagnosis and treatment, now it is more likely than not that she will
Jocelyn Dickhoff was born on June 12, 2006, to Kayla and Joseph not survive the cancer. Dr. Forman opined that because the cancer
Dickhoff. Jocelyn came home two weeks later and on that day Kayla had progressed to stage III, she has a 60–percent chance of cancer
alleges that she noticed a bump on Jocelyn's buttocks. The next day, recurrence and death, or a 40–percent chance of survival. But he
Kayla and Joseph brought Jocelyn to Dr. Rachel Tollefsrud believes that she would have had a better-than 60–percent chance of
(formerly Dr. Rachel Green) at Family Practice Medical Center of survival if the cancer had been timely diagnosed.
Willmar for her two-week well-baby checkup. Kayla alleges that
during the checkup she showed Dr. Tollefsrud the bump. The bump A jury trial was scheduled for May 10, 2010, but in April 2010,
was moveable under the skin and Jocelyn was not sensitive to it. Jocelyn's cancer recurred and she again underwent chemotherapy.
Kayla alleges that Dr. Tollefsrud told her to keep an eye on it, but Dr. Tollefsrud and Family Practice moved the district court to
not to worry because it may be just a cyst. preclude Jocelyn's claim for damages, characterizing it as a claim for
reduced chance of life or decreased life expectancy. The district
The parties dispute when and how often Kayla and Dr. Tollefsrud court ruled that claims for past and future medical expenses were
discussed Jocelyn's bump over the next year. Kayla testified that she precluded because Jocelyn needed the same care and treatment
pointed out the bump to Dr. Tollefsrud at numerous appointments regardless of whether she had been diagnosed earlier. The remaining
and that, as the year progressed, the bump grew in size and became claim for damages focused on the Dickhoffs' expenses arising from
less moveable. Dr. Tollefsrud recalled having a conversation about the recurrence of Jocelyn's cancer in April 2010.
Jocelyn's bump before Jocelyn's one-year checkup. She also recalled
examining the buttocks area and observing a bump that was about Jocelyn's deteriorated medical condition delayed the trial. In June
0.6 centimeters in size and moveable under the skin, but she could 2010, the respondents moved to dismiss the Dickhoffs' claim for
not recall at which visit that had occurred. Dr. Tollefsrud did not reduced chance of life and for medical expenses based on the
document the bump in Jocelyn's medical file until Jocelyn's one-year cancer's recurrence. They argued that the malpractice claim is
checkup on June 14, 2007. She then noted that Jocelyn “[h]as had essentially a claim for reduced chance of life because the allegations
small lump on left buttock, which had been unchanged, now has refer to a “shortened life expectancy” and “deprivation of normal life
gotten larger.” The bump had grown to four centimeters wide. expectancy,” and reduced chance is not recognized in Minnesota
under Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993). They also
Kayla took Jocelyn to other doctors, and eventually to Dr. Brenda argued that the claim for medical expenses is not supported by any
Weigel at the end of July 2007. Dr. Weigel is a pediatric oncologist. admissible expert evidence proving that Dr. Tollefsrud caused the
The next month Dr. Weigel diagnosed Jocelyn with stage IV damages. The Dickhoffs responded to the motion to dismiss as a
alveolar rhabdomyosarcoma (RMS), a cancer of the muscle, and summary judgment motion and, relying on their expert's affidavits,
concluded that the cancer had metastasized. Doctors at Sloan– argued that the claim is not barred as a reduced-chance claim
Kettering in New York later opined that Jocelyn's cancer was at because a medical-malpractice cause of action exists in Minnesota
stage III. when a physician's negligence causes a patient's chances of survival
to fall below 50 percent.
About 350 children are diagnosed annually with RMS, and children
under age one generally have a worse prognosis than others. The site The district court granted Dr. Tollefsrud and Family Practice's
of Jocelyn's cancer, the perianal area, is unfavorable. Jocelyn motion. It held that claims for reduced chance of life, like the
underwent six months of chemotherapy, had the tumor surgically Dickhoffs', have been consistently rejected by the supreme court. It
removed, and underwent additional chemotherapy and radiation. also dismissed their claim for medical expenses because the expert
testimony did not establish that it was more probable than not that
The Dickhoffs brought this lawsuit on behalf of Jocelyn in April the respondents' alleged negligence, rather than the existence of the
2009. They asserted that Dr. Tollefsrud and Family Practice Medical cancer itself, caused Jocelyn's damages.
Center negligently failed to diagnose Jocelyn's symptoms or refer
them to a specialist. They alleged that the cancer would have been The Dickhoffs appeal.
curable under a proper, timely diagnosis. They also alleged that Dr.
Tollefsrud's and Family Practice's negligence resulted in injuries to
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ISSUES recurrence” is not a compensable injury. Id. (Throughout this

opinion, we mostly use the term reduced chance rather than the
I. Did the district court err by dismissing the Dickhoffs' claim as a more common term loss of chance to avoid confusion between the
claim for reduced chance? two potential claims compared and discussed here—a mere
reduction in chance of survival ( loss-of-chance or reduced-chance
claim ) and a reduction in chance that drops the prognosis of survival
II. Did the district court err by dismissing the Dickhoffs' claim for
below 50 percent ( improbable-survival claim)).
damages arising from the recurrence of Jocelyn's cancer?
The Dickhoffs argue that because Jocelyn's chances of surviving the
ANALYSIS
cancer dropped from more likely than not that she will survive, to
more likely than not that she will not survive, they have stated a
The Dickhoffs challenge the district court's dismissal of their cause of action under MacRae. The respondents counter that the
medical-malpractice claim as a claim for reduced chance and their MacRae statement is merely dictum. But it was not dictum because
claim for damages arising from the recurrence of Jocelyn's cancer as it was necessary to MacRae's holding declaring when a cause of
unsupported by evidence. Because the district court relied on action accrues in a cancer misdiagnosis case. And even if we read it
information in Dr. Forman's affidavits not originally included in the as dictum, we still give the analysis some weight because it may
pleadings, we will treat the respondents' motion as one for summary foreshadow the supreme court's direction. See In re Estate of Bush,
judgment. See Minn. R. Civ. P. 12.03. “Summary judgment is 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974) (“Even dictum, if
appropriate when the evidence, viewed in the light most favorable to it contains an expression of the opinion of the [supreme] court, is
the nonmoving party, shows that there is no genuine issue of entitled to considerable weight.”). This is not to say that we are
material fact and the moving party is entitled to judgment as a matter bound by the supreme court's remarks that are not essential to its
of law.” Anderson v. State, Dep't of Natural Res., 693 N.W.2d 181, holdings; but where clear precedent is lacking, dicta offers at least
186 (Minn.2005). We review the grant of summary judgment de some insight into how the court might address a question later
novo. Zip Sort, Inc. v. Comm'r of Rev., 567 N.W.2d 34, 37 presented.
(Minn.1997).
Leubner v. Sterner also provides support for our understanding of
I MacRae. In Leubner, the appellant brought a medical-malpractice
claim against her doctor for failing to diagnose breast cancer after
The Dickhoffs argue that the district court dismissed their medical- she found two lumps. 493 N.W.2d at 120. The appellant asserted that
malpractice claim inappropriately by mischaracterizing it as a claim the failure to diagnose the cancer reduced her chances of survival.
for “loss of chance.” To establish a prima facie case of medical Id. The district court granted summary judgment in favor of the
malpractice, a plaintiff must demonstrate by expert testimony (1) the defendant. Id. On appeal, this court affirmed on the reduced-chance
applicable standard of care, (2) that the defendant breached that theory but remanded the case on the theory of negligent aggravation
standard of care, and (3) that the breach was a direct cause of the of a pre-existing condition. Id. at 120–21. The supreme court granted
plaintiff's injuries. Fabio v. Bellomo, 504 N.W.2d at 762. Both review and held that negligent aggravation of a preexisting condition
aspects of the third issue—causation and injury—are contested on is not a theory of liability. Id. at 122. In the course of discussing
appeal. A malpractice plaintiff must prove by expert testimony that it causation and the appellant's injury, it stated that the appellant's
is more probable than not that the alleged tortfeasor's negligence claimed injury of “increased risks of recurrence and metastases
caused her injuries. Leubner v. Sterner, 493 N.W.2d 119, 121 along with a decreased likelihood of survival as a direct result of the
(Minn.1992). Causation is generally a fact question for the jury, but tumor's unchecked growth” was not a viable theory because “there
where reasonable minds can arrive at only one conclusion, causation [was] no proof [that] it [was] more probable than not that plaintiff
is a question of law. Lubbers v. Anderson, 539 N.W.2d 398, 402 will not survive her cancer” and, in that case, “death was
(Minn.1995). overwhelmingly improbable.” Id. at 121. Leubner therefore
foreshadowed the cause of action that was expressly articulated in
Regarding injury, the Dickhoffs maintain that Jocelyn has stated a MacRae, which is that a patient states a malpractice claim based on a
medical-malpractice claim for failure to diagnose, relying on failure to diagnose if the misdiagnosis makes it more probable than
MacRae v. Group Health Plan, Inc., 753 N.W.2d 711 (Minn.2008). not that she will not survive her cancer.
MacRae addressed the issue of when the statute of limitations
accrues in a medical-malpractice claim for cancer misdiagnosis. Id. Respondents assert that Fabio v. Bellomo, which expressly rejected
at 717. More specifically, it addressed when a negligent the reduced-chance theory of liability, is controlling and dispositive.
misdiagnosis causes a patient to suffer a compensable injury. Id. The See 504 N.W.2d at 762. We are not persuaded. The appellant in
supreme court reasoned that “a court must determine when a cause Fabio sued her doctor for failing to diagnose a lump in her breast as
of action accrues in cases of misdiagnosis of cancer by looking at the cancer. Id. at 760. The appellant claimed that the delay in diagnosis
unique circumstances of the particular case to determine when some “resulted in a ‘loss of chance’ of life expectancy and a greater risk of
compensable damage occurred as a result of the alleged negligent recurrence of cancer.” Id. at 761. Her expert opined that her risk of
misdiagnosis.” Id. at 721–22. It rejected the argument that the only cancer recurrence was about 30 percent and her chance to survive at
compensable damage that “can occur in a cancer misdiagnosis case least 20 years was 50–50. Id. at 763. The supreme court held that it
[is when it] is more likely than not that the patient will not survive had “never recognized loss of chance in the context of a medical
the disease,” and held that this was one of several theories of malpractice action” and it declined to do so in that case. Id. at 762.
recovery. Id. at 722. It emphasized that, by contrast, “ ‘loss of The court also stated that even if it recognized reduced chance as a
chance’ due to reduced life expectancy and increased risk of theory of recovery, the appellant would not prevail because she
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failed to present evidence that it was more probable than not that the cancer moved from unlikely to likely and the jury could find that this
cancer would recur or that she would have a diminished life change was more probably than not the result of Dr. Tollefsrud's
expectancy. Id. at 763 (emphasis added). Fabio's holding does not negligence, we believe the district court erred by dismissing the
foreclose the action here because MacRae succeeded Fabio and medical-malpractice claim as a claim for reduced chance.
expressed a cause of action not discussed or contemplated in Fabio.
And in Fabio, it was not more probable than not that the appellant II
would not survive.
The Dickhoffs also argue that the district court erred by dismissing
If a cause of action does not exist based on improbable survival as their claim for medical expenses based on the recurrence of Jocelyn's
expressed by MacRae, some patients whose cancer has been cancer because Dr. Forman's affidavits support their claim for
negligently misdiagnosed might have no legal recourse under damages. A medical-malpractice plaintiff must produce an expert
Fabio's reduced-chance holding. A patient would theoretically have affidavit that expresses opinions establishing that the defendant
to wait until death before her malpractice claim would ripen under deviated from the standard of care and caused injury to the plaintiff.
Fabio while MacRae holds that the claim accrued earlier for statute- Minn.Stat. § 145.682, subd. 2–3 (2010). And a plaintiff must prove
of-limitations purposes. So if that patient's death occurred after the by expert testimony that it is more probable than not that the
statute-of-limitations period ended, she might be barred from respondents' negligence caused her injuries. Leubner, 493 N.W.2d at
bringing a malpractice action altogether. We believe that the 121. Because Dr. Forman's affidavits state that it was Dr.
supreme court did not intend to completely foreclose the possibility Tollefsrud's failure to timely diagnose and treat Jocelyn's cancer that
of malpractice actions for negligent cancer-misdiagnosis cases raised the likelihood of the cancer's recurrence and her need for
involving a lengthy illness with a potentially fatal outcome. Instead, additional care from unlikely to probable, a jury could also find that
we read the caselaw only to limit those actions to circumstances in it is more probable than not that the recurrence was caused by Dr.
which it has become more probable than not that the patient will not Tollefsrud's negligence. The district court therefore erred by
survive the cancer. See MacRae, 753 N.W.2d at 722. granting summary judgment. We are aware of the evidentiary
challenges the Dickhoffs will face, as the respondents emphasize.
We are mindful of the practical difficulties this presents, particularly But we are convinced that material fact disputes here require a trial
over disputes in which a physician's contribution to an already bleak on the merits.
prognosis is not large but just enough to make death most likely.
And we also recognize the difficulty in determining damages in an DECISION
improbable-survival case. But we are bound to interpret and apply
precedent, which appears to us to allow an improbable-survival
theory of recovery but not a reduced-chance theory. Other The district court erred by granting summary judgment to the
jurisdictions have avoided the difficulty by recognizing reduced respondents because the Dickhoffs' medical-malpractice claim is not
chance as an actionable event in itself. See, e.g., Roberts v. Ohio one for reduced chance. The district court also erred by granting
Permanente Med. Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480, summary judgment for medical expenses based on Jocelyn's
484 (1996) (holding that “[i]n order to maintain an action for the loss recurrence of cancer because the Dickhoffs' expert affidavit asserts
of a less-than-even chance of recovery or survival, the plaintiff must that Dr. Tollefsrud's negligence elevated Jocelyn's chances of
present expert medical testimony showing that the health care recurrence from unlikely to probable.
provider's negligent act or omission increased the risk of harm to the
plaintiff. It then becomes a jury question as to whether the Reversed.
defendant's negligence was a cause of the plaintiff's injury or
death.”); Alberts v. Schultz, 126 N.M. 807, 975 P.2d 1279, 1285 Supreme Court of Illinois.October 21, 1993.
(1999) (recognizing reduced chance and holding that because it can
be hard to distinguish between the underlying injury and the Gilbert v. Sycamore Mun. Hosp.
reduced-chance injury “[t]he deterioration of the presenting problem Justice FREEMAN delivered the opinion of the court:
is evidence that the chance of a better result has been diminished or
lost”); DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa 1986) The question presented for review is whether a hospital can be found
(recognizing claim for reduced chance to survive cancer). Minnesota vicariously liable for the negligence of a physician who is not a
is more restrictive toward actions for medical conditions with hospital employee, but rather an independent contractor. We hold
uncertain ends after negligent misdiagnoses, but we believe MacRae that a hospital may be vicariously liable in such a case under the
and Leubner still provide for a cause of action. doctrine of apparent authority.

Respondents also assert that Dr. Tollefsrud is not liable because *791 BACKGROUND
there is only a 20–percent difference between Jocelyn's chances of
survival with a timely diagnosis than without a timely diagnosis, The record contains the following pertinent evidence. On April 8,
based on Dr. Forman's opinion. But it is clear that Dr. Forman was 1981, defendant, Sycamore Municipal Hospital (hospital), in
simply giving a general range, not a precise estimate of Jocelyn's Sycamore, Illinois, was a full service, acute care facility. The
chances of survival. He stated that because he believed that Jocelyn's hospital's active staff consisted of 14 to 20 physicians including
cancer was in stage III she has no better than a 40–percent chance of Irving Frank, M.D. Dr. Frank was a general practitioner.
survival, but had she been timely diagnosed, her chances of survival
“would have been much higher than 60–percent.” Because the
Many of the hospital's active staff physicians practiced through
Dickhoffs must prove only that Jocelyn's chances of death from her
professional associations. Dr. Frank was the founder and president of
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one such group, Kishwaukee Medical Associates, Ltd. (KMA). Five Dr. Wassner, a KMA physician who was on call that day, asked Dr.
to eight physicians practiced through KMA. Frank to cover the emergency room for that day. Decedent asked for
Dr. Stromberg, a KMA physician. Since Wassner and not Stromberg
The hospital considered its active staff physicians to be independent was on call, an emergency room nurse telephoned Dr. Frank, who
contractors. The hospital did not pay them any salary. The record arrived a few minutes later. Dr. Frank had never met decedent before
shows, for example, that the hospital did not pay Dr. Frank any that day.
business expense, or pay his social security taxes, or provide him
with insurance, vacation, or sick leave. The hospital did not control *792 Dr. Frank gave decedent several tests, which did not reveal any
his diagnosis or treatment. Dr. Frank set his own fees, billed sign of heart disease or a heart problem. Dr. Frank prescribed pain
separately for services rendered, kept the profits and bore the losses medication for decedent and discharged him at 4:20 p.m. Later that
from his practice, and determined his own work schedule, salary, evening, decedent died as a result of a myocardial infarction. An
vacations, and maximum absences. autopsy revealed the presence of heart disease at the time of his
death.
Various practice areas in the hospital had a quality assurance review
committee that would meet regularly to review cases, statistics, and Plaintiff, Dimple Gilbert, as special administrator of decedent's
medical treatment generally. (E.g., an emergency room committee, estate, brought a medical malpractice and wrongful death action
an operating room committee, etc.) Committee members included against Dr. Frank (count I) and the hospital (count II). In count II,
active staff physicians, hospital employees, and a representative of plaintiff alleged that the hospital, by its agents or employees,
hospital administration. If the hospital did not approve of a including Dr. Frank, negligently failed to perform various acts in
physician's conduct, a hospital representative would speak to the relation to the diagnosis and treatment of decedent. Plaintiff
physician. subsequently settled with Dr. Frank, who is not a party to this
appeal, but reserved her causes of action against the hospital.
The hospital had a "call roster," but a physician association could
have its own call roster. For example, if a patient asked for a KMA The hospital moved for summary judgment. The hospital contended,
physician who was unavailable, then another KMA-designated inter alia, that it was not vicariously liable for Dr. Frank's alleged
physician would respond. negligence because he was not the hospital's agent or employee. The
circuit court of De Kalb County granted summary judgment in favor
The hospital emergency room was not managed or operated by an of the hospital. The appellate court, with one justice dissenting,
outside independent contractor or a particular medical association. affirmed. (233 Ill.App.3d 372, 174 Ill. Dec. 597, 599 N.E.2d 143.)
Rather, the emergency room was considered a hospital function. The We allowed plaintiff's petition for leave to appeal (134 Ill.2d R.
hospital employed emergency room nurses and owned emergency 315(a)), and now reverse and remand for further proceedings.
room equipment. The hospital's emergency room committee
reviewed emergency room treatment rendered by physicians. DISCUSSION

Active staff physicians were scheduled to be on call in the The purpose of summary judgment is not to try a question of fact,
emergency room. However, an assigned physician could arrange for but to determine whether one exists. (Ray v. City of Chicago (1960),
a substitute. As with their relationship generally, the hospital 19 Ill. 2d 593, 599, 169 N.E.2d 73.) Summary judgment is
considered active staff physicians assigned to the emergency room to appropriate only where "the pleadings, depositions, and admissions
be independent contractors. The physicians billed emergency room on file, together with the affidavits, if any, show that there is no
patients separately for their services. The hospital also billed genuine issue as to any material fact and that the moving party is
emergency room patients, but not for the physician's services. Marty entitled to a judgment as a matter of law." Ill.Rev. Stat.1989, ch.
Losoff, the hospital administrator in April 1981, testified in a 110, par. 2-1005(c).
deposition that the behavior of emergency room physicians could
affect the hospital's public relations. Losoff also testified that, to his
In determining whether a genuine issue as to any material fact exists,
knowledge, the hospital did not advise emergency room patients that a court must construe the pleadings, depositions, admissions, and
emergency room physicians were not hospital employees but rather affidavits strictly against the movant and liberally in favor of the
independent contractors. opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec.
305, 489 N.E.2d 867.) A triable issue precluding summary judgment
On the morning of April 8, 1981, Jack Gilbert (decedent) suffered exists where the material facts are disputed (Ray, 19 Ill. 2d at 599,
pain in his chest and left arm while lifting weights. At approximately 169 N.E.2d 73; Barkhausen v. Naugher (1946), 395 Ill. 562, 566, 70
2:30 p.m., decedent arrived by ambulance at the hospital's N.E.2d 565), or where, the material facts being undisputed,
emergency room. Upon arrival, decedent signed a consent form, reasonable persons might draw different inferences from the
prepared by the hospital, which stated in pertinent part: undisputed facts (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 135
Ill. Dec. 557, 543 N.E.2d 1304). The use of the summary judgment
"The undersigned has been informed of the emergency treatment procedure is to be encouraged as an aid in the expeditious
considered necessary for the patient whose name appears above and disposition of a lawsuit. However, it is a drastic means of disposing
that the treatment and procedures will be performed by physicians of litigation and, therefore, should be allowed only when the right of
and employees of the hospital. Authorization is hereby granted for the moving party is clear and free from doubt. Pyne, 129 Ill. 2d at
such treatment and procedures." 358, 135 Ill. Dec. 557, 543 N.E.2d 1304; Purtill, 111 Ill. 2d at 240,
95 Ill. Dec. 305, 489 N.E.2d 867.
 P a g e | 150

Vicarious Liability was an actual agent or employee of the hospital." 233 Ill.App.3d at
378-79, 174 Ill. Dec. 597, 599 N.E.2d 143.
In its motion for summary judgment, the hospital argued that it could
not be vicariously liable for the alleged negligence of Dr. Frank The decisions in Greene, Johnson, and the present case overlook two
because he was not an agent or employee of the hospital. In Illinois, realities of modern hospital care. One reality involves the business of
a hospital may be liable in a medical malpractice case on two a modern hospital. In Kashishian v. Port (1992), 167 Wis. 2d 24, 481
distinct theories. First, the hospital may be liable based upon a N.W.2d 277, the Wisconsin Supreme Court observed:
principal-agent relationship between the hospital and the physician.
Second, the hospital may owe a duty, independent of any "[H]ospitals increasingly hold themselves out to the public in
relationship between physician and patient, to review and supervise expensive advertising campaigns as offering and rendering quality
the medical care administered to a patient. (Rohe v. Shivde (1990), health services. One need only pick up a daily newspaper to see full
203 Ill.App.3d 181, 198, 148 Ill. Dec. 516, 560 N.E.2d 1113; and half page advertisements extolling the medical virtues of an
Hansbrough v. Kosyak (1986), 141 Ill.App.3d 538, 550, 95 Ill. Dec. individual hospital and the quality health care that the hospital is
708, 490 N.E.2d 181, citing Darling v. Charleston Community prepared to deliver in any number of medical areas. Modern
Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.) In the hospitals have spent billions of dollars marketing themselves,
present case, the appellate court correctly noted that the parties raise nurturing the image with the consuming public that they are full-care
only the first of these theories on appeal. modern health facilities. All of these expenditures have but one
purpose: to persuade those in need of medical services to obtain
In some decisions, the appellate court has held that a hospital is those services at a specific hospital. In essence, hospitals have
vicariously liable for the negligence of a physician who is the *793 become big business, competing with each other for health care
apparent agent of the hospital. (Northern Trust Co. v. St. Francis dollars." Kashishian, 167 Wis.2d at 38, 481 N.W.2d at 282.
Hospital (1988), 168 Ill.App.3d 270, 278-79, 119 Ill. Dec. 37, 522
N.E.2d 699; Sztorc v. Northwest Hospital (1986), 146 Ill.App.3d Further, a major component of modern hospital business is the
275, 278-79, 100 Ill. Dec. 135, 496 N.E.2d 1200.) In other decisions, emergency room. As the Mississippi Supreme Court observed:
however, the appellate court has refused to hold a hospital
vicariously liable based on an agency relationship unless the "If they [emergency room physicians] do their job well, the hospital
physician was an actual agent of the hospital. Johnson v. Sumner succeeds in its chosen mission, profiting financially and otherwise
(1987), 160 Ill. App.3d 173, 175, 111 Ill. Dec. 903, 513 N.E.2d 149; from the quality of emergency care so delivered. On such facts,
Greene v. Rogers (1986), 147 Ill.App.3d 1009, 1015-16, 101 Ill. anomaly would attend the hospital's escape from liability where the
Dec. 543, 498 N.E.2d 867. quality of care so delivered was below minimally acceptable *794
standards." Hardy v. Brantley (Miss.1985), 471 So. 2d 358, 371.
In the present case, the appellate court acknowledged that the
Northern Trust and Sztorc decisions and decisions from the courts of Another reality of modern hospital care involves the reasonable
several other States have held hospitals vicariously liable for the expectations of the public. It has been observed:
negligence of treating physicians based on the doctrine of apparent
agency. However, relying on Greene and Johnson, the court was of
the opinion "that the cases recognizing apparent agency in this "[G]enerally people who seek medical help through the emergency
context fail to take into account the unique nature of the room facilities of modern-day hospitals are unaware of the status of
relationships between physicians and patients and between the various professionals working there. Absent a situation where the
physicians and hospitals especially in emergency situations." 233 patient is directed by his own physician or where the patient makes
Ill.App.3d at 378, 174 Ill. Dec. 597, 599 N.E.2d 143. an independent selection as to which physicians he will use while
there, it is the reputation of the hospital itself upon which he would
rely. Also, unless the patient is in some manner put on notice of the
The appellate court noted that the treating physician controls and independent status of the professionals with whom it might be
directs an emergency room patient's treatment. The court reasoned expected to come into contact, it would be natural for him to assume
that it was not realistic to expect hospital staff or administration to that these people are employees of the hospital." (Arthur v. St. Peters
direct or control treatment of an emergency room patient, especially Hospital (1979), 169 N.J.Super. 575, 583, 405 A.2d 443, 447.)
when split-second decisions are required. This factor, to the court,
"demands recognition of the independent relationship between a
hospital and an emergency room physician and militates strongly (Accord Hardy, 471 So. 2d at 371.) Further:
against extension of a hospital's vicarious liability to physicians who
are not actual agents or employees of the hospital." The court also "Such appearances speak much louder than the words of whatever
noted that the application of the doctrine of apparent authority in this private contractual arrangements the physicians and the hospital may
situation would violate the fundamental precept of tort law that the have entered into, unbeknownst to the public, in an attempt to
tortfeasor be liable to the injured party for damages resulting only insulate the hospital from liability for the negligence, if any, of the
from his or her conduct. (233 Ill.App.3d at 378, 174 Ill. Dec. 597, physicians." Brown v. Coastal Emergency Services, Inc. (1987), 181
599 N.E.2d 143 (citing Johnson, 160 Ill.App.3d at 175, 111 Ill. Dec. Ga. App. 893, 898, 354 S.E.2d 632, 637, aff'd (1987), 257 Ga. 507,
903, 513 N.E.2d 149, and Greene, 147 Ill.App.3d at 1015, 101 Ill. 361 S.E.2d 164.
Dec. 543, 498 N.E.2d 867).) Based on this reasoning, the appellate
court concluded "that a hospital may be held vicariously liable for We fully agree with these observations, which have been made by
the negligence of an emergency room physician only if the physician several courts. See, e.g., Paintsville Hospital Co. v. Rose (Ky.1985),
683 S.W.2d 255, 257-58; Capan v. Divine Providence Hospital
 P a g e | 151

(1981), 287 Pa. Super. 364, 369, 430 A.2d 647, 649; Mehlman v. will be bound by not only that authority which he actually gives to
Powell (1977), 281 Md. 269, 274-75, 378 A.2d 1121, 1124. another, but also by the authority which he appears to give. Apparent
authority in an agent is the authority which the principal knowingly
The realities of modern hospital care raise a serious question permits the agent to assume, or the authority which the principal
regarding the responsibility of a hospital when a physician who is an holds the agent out as possessing. It is the authority which a
independent contractor renders negligent health care. Can a hospital reasonably prudent person, exercising diligence and discretion, in
always escape liability for the rendering of negligent health care view of the principal's conduct, would naturally suppose the agent to
because the person rendering the care was an independent possess. (State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d
contractor, regardless of how the hospital holds itself out to the 423, 431-32, 164 Ill. Dec. 631, 583 N.E.2d 547; Faber-Musser Co. v.
public, regardless of how the treating physician held himself or William E. Dee Clay Manufacturing Co. (1920), 291 Ill. 240, 244,
herself out to the public with the knowledge of the hospital, and 126 N.E. 186.) Where the principal creates the appearance of
regardless of the perception created in the mind of the public? We authority, the principal "will not be heard to deny the agency to the
agree with the court in Kashishian that a hospital cannot always prejudice of an innocent party, who has been led to rely upon the
escape liability in such a case. Kashishian, 167 Wis.2d at 39, 481 appearance of authority in the agent." Union Stock Yard & Transit
N.W.2d at 282. Co. v. Mallory, Son & Zimmerman Co. (1895), 157 Ill. 554, 565, 41
N.E. 888; accord State Security Insurance Co., 145 Ill. 2d at 432,
The Wisconsin Supreme Court has concluded: 164 Ill. Dec. 631, 583 N.E.2d 547; Faber-Musser Co., 291 Ill. at
244-45, 126 N.E. 186; 1 F. Mechem, Agency § 246 (2d ed. 1914).
"Consistent with this concept of the modern-day hospital facilities, a
patient who is unaware that the person providing treatment is not the Whether an agent is authorized to act is a question of fact.
employee or agent of the hospital should have a right to look to the (Barkhausen, 395 Ill. at 566, 70 N.E.2d 565.) Whether a person has
hospital in seeking compensation for any negligence in providing notice of the lack of an agent's authority, or is put on notice by
emergency room care. The fact that, unbeknownst to the patient, the circumstances, is likewise a question of fact. Schoenberger v.
physician was an independent contractor should not prohibit a Chicago Transit Authority (1980), 84 Ill.App.3d 1132, 1138, 39 Ill.
patient from seeking compensation from the hospital which offers Dec. 941, 405 N.E.2d 1076, citing Paine v. Sheridan Trust &
the emergency room care." (Pamperin v. Trinity Memorial Hospital Savings Bank (1930), 342 Ill. 342, 174 N.E. 368.
(1988), 144 Wis. 2d 188, 207, 423 N.W.2d 848, 855.)
It is true that the doctrine of apparent authority is more commonly
We join the many courts that have reached this conclusion. For lists applied in contract cases. (Lynch v. Board of Education of
of decisions, see Kashishian, 167 Wis.2d at 40, 481 N.W.2d at 283; Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415,
Brown, 181 Ga.App. at 896-97, 354 S.E.2d at 636; Martell v. St. 439, 45 Ill. Dec. 96, 412 N.E.2d 447 (Ryan, J., dissenting).)
Charles Hospital (1987), 137 Misc. 2d 980, 991-92, 523 N.Y.S.2d However, it is settled that an apparent agency gives rise to tort
342, 350. liability where the injury would not have occurred but for the injured
party's justifiable reliance on the apparent agency. Brown, 181
Ga.App. at 897, 354 S.E.2d at 636, aff'd, 257 Ga. at 508-09, 361
We stress that liability attaches to the hospital only where the S.E.2d at 166; Restatement (Second) of Agency §§ 265 through 267
treating physician is the apparent or ostensible agent of the hospital. (1958); W. Seavey, Law of Agency § 90 (1964).
If a patient knows, or should have known, that the treating physician
is an independent contractor, then the hospital will not be liable. See
Pamperin, 144 Wis.2d at 207 n. 7, 423 N.W.2d at 855 n. 7. Therefore, we hold that, under the doctrine of apparent authority, a
hospital can be held vicariously liable for the negligent acts of a
physician providing care at the hospital, regardless of whether the
Apparent Authority physician is an independent contractor, unless the patient knows, or
should have known, that the physician is an independent contractor.
We now discuss the theory under which a hospital may be held The elements of the action have been set out as follows:
vicariously liable, in a proper case, for the negligence of
independent-contractor physicians. The parties in the present case, "For a hospital to be liable under the doctrine of apparent authority,
and other courts that *795 have addressed this issue, have relied on a plaintiff must show that: (1) the hospital, or its agent, acted in a
either section 429 of the Restatement (Second) of Torts (Restatement manner that would lead a reasonable person to conclude that the
(Second) of Torts § 429 (1965)) or section 267 of the Restatement individual who was alleged to be negligent was an employee or
(Second) of Agency (Restatement (Second) of Agency § 267 (1958)) agent of the hospital; (2) where the acts of the agent create the
or both. See Pamperin, 144 Wis.2d at 205-06, 423 N.W.2d at 854- appearance of authority, the plaintiff must also prove that the
55; Martell, 137 Misc.2d at 992, 523 N.Y.S.2d at 350. hospital had knowledge of and acquiesced in them; and (3) the
plaintiff acted in reliance upon the conduct of the hospital or its
We do not deem it necessary at this time to adopt a special rule in agent, consistent with ordinary care and prudence." Pamperin, 144
this area. Rather, we conclude that Illinois case law sufficiently Wis.2d at 207-08, 423 N.W.2d at 855-56.
recognizes the realities of modern hospital care and defines the
limits of a hospital's liability. *796 Accord Brown, 257 Ga. at 509-10, 361 S.E.2d at 166-67;
Mehlman, 281 Md. at 274-75, 378 A.2d at 1124.
Illinois has long recognized the doctrine of apparent authority, which
refers to a type of agency relationship. (2A C.J.S. Agency §§ 19, 20 The element of "holding out" on the part of the hospital does not
(1972); 1 F. Mechem, Agency §§ 56, 57 (2d ed. 1914).) A principal require an express representation by the hospital that the person
 P a g e | 152

alleged to be negligent is an employee. Rather, the element is The appellate court rejected this argument. We agree with the
satisfied if the hospital holds itself out as a provider of emergency appellate court's reasoning and result on this issue. 233 Ill.App.3d at
room care without informing the patient that the care is provided by 376-77, 174 Ill. Dec. 597, 599 N.E.2d 143.
independent contractors. Pamperin, 144 Wis.2d at 209-10, 423
N.W.2d at 856-57. We lastly note the hospital's argument that, even if Dr. Frank was an
apparent agent of the hospital, plaintiff's settlement with him
The element of justifiable reliance on the part of the plaintiff is extinguished her claim against the hospital. Defendant relies on this
satisfied if the plaintiff relies upon the hospital to provide complete court's recent decision in American National Bank & Trust Co. v.
emergency room care, rather than upon a specific physician. The Columbus-Cuneo-Cabrini Medical Center (1992), 154 Ill. 2d 347,
Pamperin court explained: 181 Ill. Dec. 917, 609 N.E.2d 285. In that case, this court held that
where a plaintiff brings a respondeat superior *797 claim against a
"We agree with these decisions that the critical distinction is whether principal, "any settlement between the agent and the plaintiff must
the plaintiff is seeking care from the hospital itself or whether the also extinguish the principal's vicarious liability." American National
plaintiff is looking to the hospital merely as a place for his or her Bank, 154 Ill. 2d at 355, 181 Ill. Dec. 917, 609 N.E.2d 285.
personal physician to provide medical care. Except for one who
seeks care from a specific physician, if a person voluntarily enters a The rule announced in American National Bank creates an
hospital without objecting to his or her admission to the hospital, inconsistency with this court's decision in Edgar County Bank &
then that person is seeking care from the hospital itself. An Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d
individual who seeks care from a hospital itself, as opposed to care 259. In Edgar County Bank, this court held that a covenant not to sue
from his or her personal physician, accepts care from the hospital in an employee or agent that expressly reserves a plaintiff's right to
reliance upon the fact that complete emergency room carefrom blood seek recovery from a principal does not bar the plaintiff's respondeat
testing to radiological readings to the endless medical support superior action against the principal. Edgar County Bank, 57 Ill. 2d
serviceswill be provided by the hospital through its staff." Pamperin, at 302, 312 N.E.2d 259, relied on in Stewart v. Village of Summit
144 Wis.2d at 211-12, 423 N.W.2d at 857. (1986), 114 Ill. 2d 23, 29-30, 101 Ill. Dec. 862, 499 N.E.2d 450.

We now apply these principles to the record before us. Construing Although American National Bank holds that a plaintiff's settlement
the evidence strictly against the hospital and liberally in favor of with an agent extinguishes the principal's vicarious liability, Edgar
plaintiff, we conclude that a genuine issue of material fact exists as County Bank renews the principal's liability if the plaintiff's
to whether Dr. Frank was an apparent agent of the hospital. When covenant not to sue the agent expressly reserves the plaintiff's right
the decedent was brought to the hospital emergency room, he asked to seek recovery from the principal. Under such a rule, it is fair to
for Dr. Stromberg, a KMA physician. Decedent did not ask for Dr. surmise that no covenant not to sue an agent will ever lack such an
Frank, who was not decedent's physician and who had never before express reservation of rights against the principal.
met decedent. Rather, Dr. Frank was another KMA physician who
merely happened to be covering the emergency room the day In Bristow v. Griffitts Construction Co. (1986), 140 Ill.App.3d 191,
decedent was taken there. The hospital did not inform emergency 94 Ill. Dec. 506, 488 N.E.2d 332, the appellate court acknowledged
room patients that emergency room physicians were independent that this result appears to deny the employee the benefit of his
contractors. Also, the hospital's treatment consent form, which covenant because he would remain liable to the employer for
decedent signed, stated that he would be treated "by physicians and indemnification. However, the court concluded that such a result is
employees of the hospital." permissible because the employee expressly agreed. (Bristow, 140
Ill.App.3d at 193, 94 Ill. Dec. 506, 488 N.E.2d 332.) Thus, the rule
The record contains conflicting evidence as to both the hospital's announced in Bristow was that where a plaintiff brings a respondeat
"holding out" of emergency room care, and decedent's justifiable superior claim against a principal, the settlement of the plaintiff's
reliance that the emergency room care was provided by the hospital claim against the agent extinguishes the plaintiff's claim against the
rather than by Dr. Frank or KMA specifically. At the least, principal, if the agreement does not expressly reserve the plaintiff's
reasonable persons might draw different inferences from the facts of action against the principal. See Kandaras & Kelley, New
record. Based on the record before us, we cannot say that the Developments in the Illinois Law of Contribution Among Joint
hospital's right to summary judgment is clear and free from doubt. Tortfeasors, 23 Loy.U.Chi.L.J. 407, 425 (1992).
Thus, we reverse the trial court's entry of summary judgment in
favor of the hospital. We cannot allow this "catch 22" to remain unreconciled. It is
axiomatic that the settlement of disputes is to be encouraged.
Miscellaneous Issues However, this court held in American National Bank that common
law implied indemnity remains viable in quasi-contractual
We note two additional arguments of the hospital. The hospital relationships involving vicarious liability. (American National Bank,
argues that we should not consider the issue of apparent agency 154 Ill. 2d at 354, 181 Ill. Dec. 917, 609 N.E.2d 285.) Thus, as the
because plaintiff did not plead it. In her complaint, plaintiff alleged Bristow court observed, an agent would gain nothing for settling
simply that Dr. Frank was an agent or employee of the hospital, with a plaintiff unless the covenant not to sue the agent also
rather than alleging specifically that Dr. Frank was an apparent agent extinguished the principal's vicarious liability. Bristow, 140
of the hospital. Ill.App.3d at 198, 94 Ill. Dec. 506, 488 N.E.2d 332.

Accordingly, we hold that the rule announced in American National

Bank that "any settlement between the agent and the plaintiff must
 P a g e | 153

also extinguish the principal's vicarious liability" (American Judgments reversed; cause remanded.
National Bank, 154 Ill. 2d at 355, 181 Ill. Dec. 917, 609 N.E.2d 285)
stands regardless of whether the plaintiff's covenant not to sue the G.R. No. L-21549             October 22, 1924
agent expressly reserves the plaintiff's right to seek recovery from
the principal. Cases holding to the contrary, such as Edgar County
Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 TEODORO VEGA, plaintiff-appellee, vs.
N.E.2d 259, and Stewart v. Village of Summit (1986), 114 Ill. 2d 23, THE SAN CARLOS MILLING CO., LTD., defendant-
29-30, 101 Ill. Dec. 862, 499 N.E.2d 450, are hereby overruled on appellant.ROMUALDEZ, J.:
this point.
This action is for the recovery of 32,959 kilos of centrifugal sugar,
We further conclude that the rule we announce today shall apply or its value, P6,252, plus the payment of P500 damages and the
prospectively from the date of the filing of this opinion. Of course, costs.
this court has the inherent power to make its rulings prospective. A
new rule or decision will be given prospective operation whenever The defendants filed an answer, and set up two special defenses, the
injustice or hardship, due to justifiable reliance on the overruled first of which is at the same time a counterclaim.
decisions, would thereby be averted. Elg v. Whittington (1987), 119
Ill. 2d 344, 356-57, 116 Ill. Dec. 252, 518 N.E.2d 1232 (and cases The Court of First Instance of Occidental Negros that tried the case,
cited therein). rendered judgment, the dispositive part of which is as follows:

We find that the facts in the present case meet the general test for By virtue of these considerations, the court is of opinion
prospective application. (Elg, 119 Ill. 2d at 359, 116 Ill. Dec. 252, that with respect to the complaint, the plaintiff must be held
518 N.E.2d 1232.) Initially, today's *798 decision overruled clear to have a better right to the possession of the 32,959 kilos
past precedent, e.g., Edgar County Bank. Also, the rule we announce of centrifugal sugar manufactured in the defendants' central
today would not be thwarted by a prospective application. The and the latter is sentenced to deliver them to the plaintiff,
purpose of the rule in American National Bank is to encourage and in default, the selling price thereof, amounting to
settlements on the part of agents. In the present case, however, Dr. P5,981.06 deposited in the office of the clerk of the court.
Frank has already settled. He agreed to plaintiff's reservation of Plaintiff's claim for damages is denied, because it has not
rights against the hospital while he knew or should have known of been shown that the defendant caused the plaintiff any
the hospital's right of implied indemnity against him. damages. Plaintiff is absolved from defendant's
counterclaim and declared not bound to pay the such
Finally, a balance of the equities clearly favors prospective claimed therein. Plaintiff is also absolved from the
application. Retroactive application of the rule we announce today counterclaim of P1,000, for damages, it not having been
would not greatly improve the hospital's position. Under the rule we proved that any damages were caused and suffered by
announce today, Dr. Frank settles with plaintiff, which extinguishes defendant, since the writ of attachment issued in this case
the hospital's liability. Under the rule expressed in cases such as was legal and proper. Without pronouncement as to costs.
Edgar County Bank, Dr. Frank settles with plaintiff but the hospital
remains liable due to the reservation of rights clause in the covenant So ordered.
not to sue Dr. Frank. However, the hospital is indemnified by Dr.
Frank. In either case, the hospital does not have to pay. The defendant company appealed from this judgment, and alleges
that the lower court erred in having held itself with jurisdiction to
In contrast, retroactive application of the rule we announce today take cognizance of and render judgment in the cause; in holding that
would be unfair to plaintiff and cause her a great hardship. In her the defendant was bound to supply cars gratuitously to the plaintiff
covenant not to sue Dr. Frank, plaintiff expressly reserved her right for the cane; in not ordering the plaintiff to pay to the defendant the
to seek recovery from the hospital. A retroactive application would sum of P2,866 for the cars used by him, with illegal interest on said
deprive plaintiff of a right which she purposely and legally retained. sum from the filing of the counterclaim, and the costs, and that said
A balance of the equities clearly weighs in favor of a prospective judgment is contrary to the weight of the evidence and the law.
application. See Elg, 119 Ill. 2d at 359, 116 Ill. Dec. 252, 518
N.E.2d 1232. The first assignment of error is based on clause 23 of the Mill's
covenants and clause 14 of the Planter's Covenant as they appear in
We conclude that a prospective operation in this case will avert Exhibit A, which is the same instrument as Exhibit 1.
injustice and hardship on plaintiff's part, who justifiably relied on the
law expressed in cases such as Edgar County Bank. Therefore, we Said clauses are as follows:
hold that this decision will apply prospectively from the date of the
filing of this opinion.
23. That it (the Mill — Party of the first part) will submit
and all differences that may arise between the Mill and the
For the foregoing reasons, the judgments of the appellate court and Planters to the decision of arbitrators, two of whom shall be
the circuit court of De Kalb County are reversed, and the cause chosen by the Mill and two by the Planters, who in case of
remanded to the trial court for further proceedings not inconsistent inability to agree shall select a fifth arbitrator, and to
with this opinion. respect and abide by the decision of said arbitrators, or any
three of them, as the case may be.
 P a g e | 154

xxx     xxx     xxx 7. Subject to the provisions as to arbitration, hereinbefore

appearing, it is mutually agreed that the courts of the City
14. That they (the Planters--Parties of the second part) will of Iloilo shall have jurisdiction of any and all judicial
submit any and all differences that may arise between the proceedings that may arise out of the contractual relations
parties of the first part and the parties of the second part of herein between the party of the first and the part is of the
the decision of arbitrators, two of whom shall be chosen by second part.
the said parties of the first part and two by the said party of
the second part, who in case of inability to agree, shall The expression "subject to the provisions as to arbitration,
select a fifth arbitrator, and will respect and abide by the hereinbefore appearing" does not declare such to be a condition
decision of said arbitrators, or any three of them, as the case precedent. This phrase does not read "subject to the arbitration," but
may be. "subject to the provisions as to arbitration hereinbefore appearing."
And, which are these "provisions as to arbitration hereinbefore
It is an admitted fact that the differences which arose between the appearing?" Undoubtedly clauses 23 and 14 quoted above, which do
parties, and which are the subject of the present litigation have not not make arbitration a condition precedent.
been submitted to the arbitration provided for in the above quoted
clauses. We find no merit in the first assignment of error.

Defendant contends that as such stipulations on arbitration are valid, The second raises the most important question in this controversy, to
they constitute a condition precedent, to which the plaintiff should wit: Whether or not the defendant was obliged to supply the plaintiff
have resorted before applying to the courts, as he prematurely did. which cars gratuitously for cane.

The defendant is right in contending that such covenants on The Central, of course, bound itself according to the contract exhibit
arbitration are valid, but they are not for the reason a bar to judicial A in clause 3 of the "Covenant by Mill," as follows:
action, in view of the way they are expressed:
3. That it will construct and thereafter maintain and operate
An agreement to submit to arbitration, not consummated by during the term of this agreement a steam or motor railway,
an award, is no bar to suit at law or in equity concerning the or both, for plantation use in transporting sugar cane, sugar
subject matter submitted. And the rule applies both in and fertilizer, as near the center of the can ands as to
respect of agreements to submit existing differences and contour of the lands will permit paying due attention to
agreements to submit differences which may arise in the grades and curves; that it will also construct branch lines at
future. (5 C. J., 42.) such points as may be necessary where the present
plantations are of such shape that the main line cannot run
And in view of the terms in which the said covenants on arbitration approximately through the center of said plantations, free of
are expressed, it cannot be held that in agreeing on this point, the charge to the Planters, and will properly equip said railway
parties proposed to establish the arbitration as a condition precedent with locomotives or motors and cars, and will further
to judicial action, because these clauses quoted do not create such a construct a branch line from the main railway line, mill and
condition either expressly or by necessary inference. warehouses to the before mentioned wharf and will further
construct yard accomodations near the sugar mill. All steam
Submission as Condition Precedent to Suit. — Clauses in locomotives shall be provided which effective spark
insurance and other contracts providing for arbitration in arresters. The railway shall be constructed upon suitable
case of disagreement are very similar, and the question and properly located right-of-way, through all plantations
whether submission to arbitration is a condition precedent so as to give, as far as practicable, to each plantations equal
to a suit upon the contract depends upon the language benefit thereof; said right-of-way to b two and one-half
employed in each particular stipulation. Where by the same meters in width on either said from the center of track on
agreement which creates the liability, the ascertainment of both main line and switches and branches.
certain facts by arbitrators is expressly made a condition
precedent to a right of action thereon, suit cannot be By this covenant, the defendant, the defendant bound itself to
brought until the award is made. But the courts generally construct branch lines of the railway at such points on the estate as
will not construe an arbitration clause as ousting them of might be necessary, but said clause No. 3 can hardly be construed to
their jurisdiction unless such construction is inevitable, and bind the defendant to gratuitously supply the plaintiff with cars to
consequently when the arbitration clause is not made a transport cane from his fields to the branch lines agreed upon on its
condition precedent by express words or necessary estate.
implication, it will be construed as merely collateral to the
liability clause, and so no bar to an action in the courts But on March 18, 1916, the defendant company, through its manager
without an award. (2 R. C. L., 362, 363.) Mr. F. J. Bell, addressed the following communication to the
plaintiff:
Neither does not reciprocal covenant No. 7 of said contract Exhibit
A expressly or impliedly establish the arbitration as a condition DEAR SIR: In reply to yours of March 15th.
precedent. Said reciprocal covenant No. 7 reads:
 P a g e | 155

Yesterday I tried to come out to San Antonio to right which he thus acquired of using the cars in question
see you but the railway was full of cars of San Jose gratuitously.
and I could not get by with my car. I will try again
as soon as I finish shipping sugar. The steamer is We do not find sufficient reason to support the second assignment of
expected today. error.

I had a switch built in the big cut on San Antonio The point raised in the third assignment of error is a consequence of
for loading your cane near the boundary of Santa the second. If the plaintiff was entitled, as we have said, to use the
Cruz. will not this sufficient? We have no another cars gratuitously, the defendant has no right to demand any payment
switch here and I hope you can get along with the from him for the use of said cars.
3 you now have.
The other assignments of error are consequences of the preceding
Some of the planters are now using short switches ones.
made of 16-lb. portable track. These can be placed
on the main line at any place and cars run off into We find nothing in the record to serve as a legal and sufficient bar to
the field and loaded. I think one on your hacienda plaintiff's action against the defendant for the delivery of the sugar in
would repay you in one season. question, or its value. A discussion as to the retention of this deposit
to apply upon what is due by reason thereof made in the judgment
The rain record can wait. appealed from, is here necessary. The parties do not raise this
question in the present instance. Furthermore, it has not been proven
                              Sincerely yours, that the plaintiff owes the defendant anything by reason of such
deposit.
SAN CARLOS MILLING CO., LTD.           (Sgd.)
F.J. BELL          The judgment appealed from is hereby affirmed with the costs of this
"Manager"           instance against the appellant. So ordered.

It is suggested to the plaintiff in this letter that he install a 16-lb. rail Johnson, Street and Villamor, JJ., concur.
portable track switch, to be used in connection with the main line, so
the cars may run on it. It is not suggested that he purchase cars, and
the letter implies that the cars mentioned therein belong to the
defendant.
Separate Opinions
As a result of this suggestion, the plaintiff bought a portable track
which cost him about P10,000, and after the track was laid, the
defendant began to use it without comment or objection from the
latter, nor payment of any indemnity for over four years.
AVANCEÑA, J., concurring:
With this letter Exhibit D, and its conduct in regard to the same, the
defendant deliberately and intentionally induced the plaintiff to I concur in the majority opinion, but desire to state, however, that
believe that by the latter purchasing the said portable track, the my vote on the first error is based upon the fact that inasmuch as
defendant would allow the free use of its cars upon said track, thus clause 23 of the Mill's Covenants, and clause 14 of the Planter's
inducing the plaintiff to act in reliance on such belief, that is, to Covenants provide that the parties should respect and abide by the
purchase such portable track, as in fact he did and laid it and used it decision of the arbitrators, they bar judicial intervention and
without payment, the cars belonging to the defendant. consequently are null and void in accordance with the ruling of this
court in the case of Wahl and Wahl vs. Donaldson, Sims & Co. (2
This is an estoppel, and defendant cannot be permitted to gainsay its Phil., 301). Clause 7 of the Mutual Covenants, naming the Court of
own acts and agreement. First Instance of Iloilo as the one with jurisdiction to try such cases
as might arise from the parties' contractual relations, by the very fact
that it was made subject to the arbitration clauses previously
The defendant cannot now demand payment of the plaintiff for such mentioned, does not render such arbitration merely a condition
use of the cars. And this is so, not because the fact of having precedent to judicial action, nor does it change its scope, as clearly
supplied them was an act of pure liberality, to which having once indicated by its wording and the intention of the parties. Said clause
started it, the defendant was forever bound, which would be 7 was doubtless added in case it became necessary to resort to the
unreasonable, but because the act of providing such cars was, under courts for the purpose of compelling the parties to accept the
the circumstances of the case, of compliance of an obligation to arbitrator's decision in accordance with the contract, and not in order
which defendant is bound on account of having induced the plaintiff to submit anew to the courts what had already been decided by the
to believe, and to act and incur expenses on the strenght of this arbitrators, whose decision the contracting parties had bound
belief. themselves to abide by and respect.

The question of whether or not the plaintiff was under the necessity MALCOLM, J., dissenting:
of first showing a cooperative spirit and conduct, does not affect the
 P a g e | 156

I join with Mr. Justice Ostrand in his dissent based on the enforced in law or in equity. (Snodgrass vs. Gavit [1857], 28 Pa.,
proposition that the defendant is not bound to furnish cars free of 221; Commercial Union Assur. Co. vs. Hocking [1886], 115 Pa.,
charge for use on the plaintiff's portable railway tracks, in relation 407; 2 Am St. Rep., 562; Page vs. Vankirk, 1 Brewst. [Pa.], 282; 47
with its corollary, that the letter written by the manager of the L. R. A. [N. S.], note, pp. 399, 400.)
defendant's mill on March 18, 1916, does not estop the defendant
from demanding compensation for the future use of the cars. I In England, the view seems now to prevail that a contractual
dissent also on another ground, which is, that the parties having stipulation for a general arbitration, constitutes a condition precedent
formally agreed submit their differences to arbitrators, while to the institution of judicial proceedings for the enforcement of the
recognizing the jurisdiction of the courts, arbitration has been made contract. (Compagnie de Commerce etc. vs. Hamburg Amerika etc.
a condition precedent to litigation, and should be held valid and [1917], 36 Phil., 590, 635.) Law Watson in Hamlyn vs. Talisker
enforceable. Distillery ([1894], App. Cas., 202), said: "The rule that a reference to
arbiters not named cannot be enforced does not appear to me to rest
Lamentable, to say the least, is the chaotic condition which exists upon any essential considerations of public policy. Even if an
with reference to the efficacy of arbitration agreements. While the opposite inference were deducible from the authorities by which it
variety of reasons advanced by the courts for refusing to compel was established, the rule has been so largely trenched upon by the
parties to abide by their arbitration contracts are not always legislation of the last 50 years, . . . that I should hesitate to affirm
convincing, and while research discloses that the rules have mounted that the policy upon which it was originally based could now be
on antiquity rather than on reason, yet we presume that, with or regarded as of cardinal importance.
without reason, the general principles must be accepted. A light is,
however, breaking through the clouds of obscurity and courts which Finally, it is within our knowledge that the Spanish civil law wisely
formerly showed hostility to arbitration are now looking upon it with contains elaborate provisions looking to the amicable adjustment of
reluctant favor. The possibly inevitable jealousy of the courts toward controversies out of court. Litigation by means of friendly adjusters
anything which deprives them of jurisdiction and the idea which was formerly well known. The procedure in this kind of litigation
once prevailed that since there are courts, therefore everybody must was minutely outlined in the Ley de Enjuiciamiento to Civil. Two
go to the courts, is, as Federal Judge Hough declares in the case of articles of the Civil Code, namely articles 1820 and 1821, were
United States Asphalt Refining Co. vs. Trinidad Lake Petroleum Co. given up to the subject of arbitration, and expressly confirmed this
([1915], 222 Fed., 1006), "A singular view of juridical sanctity." method of settling differences. (See Cordoba vs. Conde [1903], 2
Phil., 445.)
In the Philippines fortunately, the attitude of the courts toward
arbitration agreements is slowly crystallizing into definite and Now, with all these legal views to the forefront, let us notice the
workable form. The doctrine announced in Wahl and Wahl vs. facts to which they should be applied. 1awph!l.net
Donaldson, Sims & Co. ([1903], 2 Phil., 301), was that a clause in a
contract providing that all matters in dispute shall be referred to Clause 23 of the Mill's Covenants, clause 14 of the Planter's
arbitrators and to them alone, is contrary to public policy and cannot Covenants, and clause 7 of the Mutual Covenants, read as follows:
oust the courts of jurisdiction. But even this conservative expression
of the doctrine has been modernized by the subsequent cases of
Chang vs. Royal Exchange Assurance Corporation of London 23. That it (the Mill — Party of the First Part) will submit
([1907], 8 Phil., 399); Allen vs. Province of Tayabas ([1918], 38 any and all differences that may arise between the Mill and
Phil., 356); and Chan Linte vs. Law Union and Rock Ins. Co. the Planters to the decision of arbitrators, two of whom
([1921], 42 Phil., 548). The rule now is that unless the agreement is shall be chosen by the Mill and two by Planters, who in
such as absolutely to close the doors of the courts against the parties, case of inability to agree shall select a fifth arbitrator, and
which agreement would be void, the courts will look with favor to respect and abide by the decision of said arbitrators, or
upon such amicable arrangement and will only with great reluctance any three of them, as the case may be.
interfere to anticipate or nullify the action of the arbitrator.
xxx     xxx     xxx
The new point of the judiciary in the progressive jurisdiction of
Pennsylvania, in England, and under the Civil Law, is also worthy of 14. That they (the Planters--Parties of the Second Part) will
our serious consideration. It is the rule in Pennsylvania that when the submit any and all differences that may arise between the
persons making an executory contract stipulate in it that all disputes parties of the first part and the parties of the second part to
and differences between them, present or prospective, in reference to the decision of arbitrators, two of whom shall be chosen by
such contract or any sum payable under it, shall be submitted to the the said parties of the first part and two by the said party of
arbitrament of a named individual, or specifically designated the second part, who in case of inability to agree, shall
persons, they are effectually bound irrevocaby by that stipulation, select a fifth arbitrator, and will respect and abide by the
and precluded from seeking redress elsewhere until the arbiter or decision of said arbitrators, or any three of them, as the case
arbiters agreed upon have rendered an award or otherwise been may be.
discharged. The courts there, however, make distinction between
agreements for a general reference to arbitration and designating a xxx     xxx     xxx
particular individual or tribunal to arbitrate. The former may be
waived or revoked, and is no obstacle to a suit or action for the same 7. Subject to the provisions as to arbitration, hereinbefore
matter; the latter is irrevocable and until the designated arbiter or appearing, it is mutually agreed that the courts of the City
arbiters have decided, no right of action arises which can be of Iloilo shall have jurisdiction of any all judicial
 P a g e | 157

proceedings that may arise out of the contractual relations conduct must be done with the intention, or, at east, with
herein between the party of the first and the parties of the the expectation, that it will be acted upon by the other party,
second part. or under such circumstances that it is both natural and
probable that it will be so acted upon. (5) The conduct must
It was plainly the solemn purpose of the parties to settle their be relied upon by the other party, and, thus relying he must
controversies amicably if possible before resorting to the courts. be led to act upon it. (6) He must in fact act upon it in such
They provided for themselves by mutual consent a method which a manner as to change his position for the worse. (First Nat.
was speedier and less expensive for all concerned and less likely to Bank vs. Dean, 17 N. Y. Supp., 375, 377; 60 N. Y. Super.
breed that ill-feeling which is often the consequence of hotly Ct. 299 [citing Pom. Eq. Jur.]; Grange vs. Palmer.
contested litigation. All this was done by the Planters on the one
hand and by the Milling Company on the other, to the end that Bearing in mind the principles stated, let us now analyze the facts in
justice might guide them and possible differences by quickly the case. The letter of March 18, 1916, is quoted in the decision. It
adjusted. contains a suggestions that the plaintiff install short switches made
of 16-lb. rail portable track on his hacienda and expresses the
It is clear, by paragraph 7 of the Mutual Covenants, that these parties opinion that the installation would pay for itself in one season.
did not intend that the decision of the arbitrators should prevent Nothing in said about cars. The plaintiff acted on this advice and
resort to the courts, for they expressly agreed to carry litigation purchased and installed portable railroad tracks. He was allowed to
between them to the courts of Iloilo. Acting under legal rules, even use the defendant's cars on the tracks free of charge for over four
in their most restrictive form, disputes arising out of the contract, years. It is not suggested that defendant's estimate of the saving to be
were to be referred to arbitration so that the damages sustained by a effected through this installation of the portable railway system was
breach of the contract, could be ascertained by specified arbitrators misleading as we can therefore assume that the system has paid for
before any right of action arose; but the matters in dispute were not itself several times over. If so, in what respect can it be said that the
to be referred to arbitrators and to them alone, to the utter exclusion plaintiff has been mislead to his prejudice? As we have seen, if he
of the courts. It is exactly correct to state that the clauses of the has not been so mislead the doctrine of equitable estoppel will not
Covenants hereinbefore quoted, were meant as a condition precedent apply. It is evident that in this case the doctrine is invoked for-
to litigation, which accordingly should be given effect. positive gain, a purpose which is entirely beyond the scope of the
doctrine. In Lindsay vs. Cooper (94 Ala., 170), the court, speaking of
For the two reasons above explained, I vote for reversal. equitable estoppels, says: "Their operation should be limited to
saving harmless, or making whole, the person in whose they arise,
and they should never be made the instrument of gain or profit."
OSTRAND, J., dissenting: (See also 10 R. C. L., 698 and the other authorities there cited.)

I must dissent from the conclusion of the court that the defendant is The principles stated are elementary and should become obvious to
bound to furnish cars free of charge for use on the plaintiff's portable any lawyer upon a moment's reflection. But I may, perhaps, suggest
railway tracks. a homely illustration bearing on the application of these principles:
A advises his neighbor B to buy a saddle-horse. B has no saddle but,
It is admitted that the written contract between the parties does not in view of their good neighborly relations, expects to be able to
impose this obligation upon the defendant, but it is argued that the borrow one from A. B buys the horse, borrows A's saddle and keeps
letter of March 18, 1916, written by the manager of the defendant's it for several years. He does not regret the purchase of the horse but
mill, taken in connection with the fact many of the defendant's asserts that he would not have bought it but for the fact that the
patrons were permitted to use its cars on their portable railroads, expected to use A's saddle and that this expectation was justified by
without charge, now estops the defendant from demanding the further fact that A appeared to be an easy man to borrow from
compensation for the future use of the cars. and was in the habit of extending similar assistance to all of his
neighbors. It seems to me that as far as the principles involved are
That the court has here misapplied that doctrine of equitable estoppel concerned, the example given is a close parallel to the present case,
or estoppel in pais seems clear. The definitions of such estoppel may but I hope that this court would not hold A estoppel from asserting
vary somewhat but all authorities agree that the party invoking the his title to the saddle and from demanding its return.
doctrine must have been mislead to his prejudice. That is the final
and, in reality, most important of the elements of equitable estoppel. In the present case the relations between the parties are governed by
These elements are thus stated in 3 Words and Phrases, 2498: contracts in writing which are presumed to contain all the terms of
their agreement. (Sec. 285, Code of Civ. Proc.) It is not alleged that
To constitute an estoppel, the following elements are the written agreement fails to express the true intent and agreement
essential: (1) There must be conduct, acts, language, or of the parties. Yet the court through what clearly is a misapplication
silence amounting to a representation or a concealment of of the doctrine of equitable estoppel in effect varies that written
material facts. (2) These facts must be known to the party agreement and proceeds to create a new contract between the parties.
estoppel at the time of his said conduct, or, at least, the The decision of the court upon this point is, as far as I can find,
circumstances must be such that knowledge of them is unique and I suppose that most men who have occasion to enter into
necessarily imputed to him. (3) The truth concerning these written business agreements will fervently hope that it will so
facts must be known to the other part claiming the benefit remain.
of the estoppel at the time when such conduct was done,
and at the time when it was acted upon him. (4) The G.R. No. 187926               February 15, 2012
 P a g e | 158

Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU representing medical expenses without subsidiary imprisonment in
BASTAN, Petitioners, case of insolvency and to pay the costs.
vs.PEOPLE OF THE PHILIPPINES, Respondent.
It appearing that Dr. Pamittan has not been apprehended nor
voluntarily surrendered despite warrant issued for her arrest, let
MENDOZA, J.: warrant be issued for her arrest and the case against her be
ARCHIVED, to be reinstated upon her apprehension.
Even early on, patients have consigned their lives to the skill of their
doctors. Time and again, it can be said that the most important goal SO ORDERED.6
of the medical profession is the preservation of life and health of the
people. Corollarily, when a physician departs from his sacred duty
and endangers instead the life of his patient, he must be made liable The RTC explained:
for the resulting injury. This Court, as this case would show, cannot
and will not let the act go unpunished.1 After a thorough and in depth evaluation of the evidence adduced by
the prosecution and the defense, this court finds that the evidence of
This is a petition for review under Rule 45 of the Rules of Court the prosecution is the more credible, concrete and sufficient to create
challenging the August 29, 2008 Decision2 of the Court of Appeals that moral certainty in the mind of the Court that accused herein
(CA), and its May 19, 2009 Resolution3 in CA-G.R. CR No. 29559, [are] criminally responsible. The Court believes that accused are
dismissing the appeal and affirming in toto the June 14, 2005 negligent when both failed to exercise the necessary and reasonable
Decision4 of the Regional Trial Court, Branch 43, Manila (RTC), prudence in ascertaining the extent of injury of Alfonso Santiago, Jr.
finding the accused guilty beyond reasonable doubt of simple
imprudence resulting to serious physical injuries. However, the negligence exhibited by the two doctors does not
approximate negligence of a reckless nature but merely amounts to
THE FACTS simple imprudence. Simple imprudence consists in the lack of
precaution displayed in those cases in which the damage impending
to be caused is not the immediate nor the danger clearly manifest.
Belinda Santiago (Mrs. Santiago) lodged a complaint with the The elements of simple imprudence are as follows.
National Bureau of Investigation (NBI) against the petitioners, Dr.
Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr.
Bastan), for their alleged neglect of professional duty which caused 1. that there is lack of precaution on the part of the
her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical offender; and
injuries. Upon investigation, the NBI found that Roy Jr. was hit by a
taxicab; that he was rushed to the Manila Doctors Hospital for an 2. that the damage impending to be caused is not immediate
emergency medical treatment; that an X-ray of the victim’s ankle of the danger is not clearly manifest.
was ordered; that the X-ray result showed no fracture as read by Dr.
Jarcia; that Dr. Bastan entered the emergency room (ER) and, after Considering all the evidence on record, The Court finds the accused
conducting her own examination of the victim, informed Mrs. guilty for simple imprudence resulting to physical injuries. Under
Santiago that since it was only the ankle that was hit, there was no Article 365 of the Revised Penal Code, the penalty provided for is
need to examine the upper leg; that eleven (11) days later, Roy Jr. arresto mayor in its minimum period.7
developed fever, swelling of the right leg and misalignment of the
right foot; that Mrs. Santiago brought him back to the hospital; and Dissatisfied, the petitioners appealed to the CA.
that the X-ray revealed a right mid-tibial fracture and a linear
hairline fracture in the shaft of the bone.
As earlier stated, the CA affirmed the RTC decision in toto. The
August 29, 2008 Decision of the CA pertinently reads:
The NBI indorsed the matter to the Office of the City Prosecutor of
Manila for preliminary investigation. Probable cause was found and
This Court holds concurrently and finds the foregoing circumstances
a criminal case for reckless imprudence resulting to serious physical
sufficient to sustain a judgment of conviction against the accused-
injuries, was filed against Dr. Jarcia, Dr. Bastan and Dr. Pamittan,5
appellants for the crime of simple imprudence resulting in serious
before the RTC, docketed as Criminal Case No. 01-196646.
physical injuries. The elements of imprudence are: (1) that the
offender does or fails to do an act; (2) that the doing or the failure to
On June 14, 2005, the RTC found the petitioners guilty beyond do that act is voluntary; (3) that it be without malice; (4) that
reasonable doubt of the crime of Simple Imprudence Resulting to material damage results from the imprudence; and (5) that there is
Serious Physical Injuries. The decretal portion of the RTC decision inexcusable lack of precaution on the part of the offender, taking
reads: into consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances regarding
WHEREFORE, premises considered, the Court finds accused DR. persons, time and place.
EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN
GUILTY beyond reasonable doubt of the crime of SIMPLE Whether or not Dr. Jarcia and Dr. Bastan had committed an
IMPRUDENCE RESULTING TO SERIOUS PHYSICAL "inexcusable lack of precaution" in the treatment of their patient is to
INJURIES and are hereby sentenced to suffer the penalty of ONE be determined according to the standard of care observed by other
(1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to members of the profession in good standing under similar
indemnify MRS. BELINDA SANTIAGO the amount of ₱ 3,850.00
 P a g e | 159

circumstances, bearing in mind the advanced state of the profession A: Dra. Pamittan was inside the cubicle of the nurses and I asked
at the time of treatment or the present state of medical science. In the her, you let us go home and you don’t even clean the wounds of my
case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated son.
that, in accepting a case, a doctor in effect represents that, having the
needed training and skill possessed by physicians and surgeons Q: And what did she [tell] you?
practicing in the same field, he will employ such training, care and
skill in the treatment of his patients. He therefore has a duty to use at A: They told me they will call a resident doctor, sir.
least the same level of care that any other reasonably competent
doctor would use to treat a condition under the same circumstances.
x x x           x x x          x x x
In litigations involving medical negligence, the plaintiff has the
burden of establishing accused-appellants’ negligence, and for a Q: Was there a resident doctor [who] came?
reasonable conclusion of negligence, there must be proof of breach
of duty on the part of the physician as well as a causal connection of A: Yes, Sir. Dra. Bastan arrived.
such breach and the resulting injury of his patient. The connection
between the negligence and the injury must be a direct and natural Q: Did you tell her what you want on you to be done?
sequence of events, unbroken by intervening efficient causes. In
other words, the negligence must be the proximate cause of the A: Yes, sir.
injury. Negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury
Q: What did you [tell] her?
complained of. The proximate cause of an injury is that cause which,
in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the result A: I told her, sir, while she was cleaning the wounds of my son, are
would not have occurred. you not going to x-ray up to the knee because my son was
complaining pain from his ankle up to the middle part of the right
leg.
In the case at bench, the accused-appellants questioned the
imputation against them and argued that there is no causal
connection between their failure to diagnose the fracture and the Q: And what did she tell you?
injury sustained by Roy.
A: According to Dra. Bastan, there is no need to x-ray because it was
We are not convinced. the ankle part that was run over.

The prosecution is however after the cause which prolonged the pain Q: What did you do or tell her?
and suffering of Roy and not on the failure of the accused-appellants
to correctly diagnose the extent of the injury sustained by Roy. A: I told her, sir, why is it that they did not examine[x] the whole
leg. They just lifted the pants of my son.
For a more logical presentation of the discussion, we shall first
consider the applicability of the doctrine of res ipsa loquitur to the Q: So you mean to say there was no treatment made at all?
instant case. Res ipsa loquitur is a Latin phrase which literally means
"the thing or the transaction speaks for itself. The doctrine of res A: None, sir.
ipsa loquitur is simply a recognition of the postulate that, as a matter
of common knowledge and experience, the very nature of certain x x x           x x x          x x x
types of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing the injury
x x x           x x x          x x x
in the absence of some explanation by the accused-appellant who is
charged with negligence. It is grounded in the superior logic of
ordinary human experience and, on the basis of such experience or A: I just listened to them, sir. And I just asked if I will still return my
common knowledge, negligence may be deduced from the mere son.
occurrence of the accident itself. Hence, res ipsa loquitur is applied
in conjunction with the doctrine of common knowledge. x x x           x x x          x x x

The specific acts of negligence was narrated by Mrs. Santiago who x x x           x x x          x x x

accompanied her son during the latter’s ordeal at the hospital. She
testified as follows: Q: And you were present when they were called?

Fiscal Formoso: A: Yes, sir.

Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Q: And what was discussed then by Sis. Retoria?
Dra. Pamittan to confirm whether you should go home or not?
A: When they were there they admitted that they have mistakes, sir.
 P a g e | 160

Still, before resort to the doctrine may be allowed, the following that time, I don’t [know] why they don’t….Because at that time, I
requisites must be satisfactorily shown: think, it is the decision. Since the x-rays….

1. The accident is of a kind which ordinarily does not occur Ordinarily, only physicians and surgeons of skill and experience are
in the absence of someone’s negligence; competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However,
2. It is caused by an instrumentality within the exclusive testimony as to the statements and acts of physicians, external
control of the defendant or defendants; and appearances, and manifest conditions which are observable by any
one may be given by non-expert witnesses. Hence, in cases where
3. The possibility of contributing conduct which would the res ipsa loquitur is applicable, the court is permitted to find a
make the plaintiff responsible is eliminated. physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care.
In the above requisites, the fundamental element is the "control of Where common knowledge and experience teach that a resulting
the instrumentality" which caused the damage. Such element of injury would not have occurred to the patient if due care had been
control must be shown to be within the dominion of the accused- exercised, an inference of negligence may be drawn giving rise to an
appellants. In order to have the benefit of the rule, a plaintiff, in application of the doctrine of res ipsa loquitur without medical
addition to proving injury or damage, must show a situation where it evidence, which is ordinarily required to show not only what
is applicable and must establish that the essential elements of the occurred but how and why it occurred. In the case at bench, we give
doctrine were present in a particular incident. The early treatment of credence to the testimony of Mrs. Santiago by applying the doctrine
the leg of Roy would have lessen his suffering if not entirely relieve of res ipsa loquitur.
him from the fracture. A boy of tender age whose leg was hit by a
vehicle would engender a well-founded belief that his condition may
worsen without proper medical attention. As junior residents who Res ipsa loquitur is not a rigid or ordinary doctrine to be
only practice general surgery and without specialization with the perfunctorily used but a rule to be cautiously applied, depending
case consulted before them, they should have referred the matter to a upon the circumstances of each case. It is generally restricted to
specialist. This omission alone constitutes simple imprudence on situations in malpractice cases where a layman is able to say, as a
their part. When Mrs. Santiago insisted on having another x-ray of matter of common knowledge and observation, that the
her child on the upper part of his leg, they refused to do so. The consequences of professional care were not as such as would
mother would not have asked them if they had no exclusive control ordinarily have followed if due care had been exercised. A
or prerogative to request an x-ray test. Such is a fact because a distinction must be made between the failure to secure results and
radiologist would only conduct the x-ray test upon request of a the occurrence of something more unusual and not ordinarily found
physician. if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. The latter circumstance is the
primordial issue that confronted this Court and we find application
The testimony of Mrs. Santiago was corroborated by a bone of the doctrine of res ipsa loquitur to be in order.
specialist Dr. Tacata. He further testified based on his personal
knowledge, and not as an expert, as he examined himself the child
Roy. He testified as follows: WHEREFORE, in view of the foregoing, the appeal in this case is
hereby DISMISSED and the assailed decision of the trial court
finding accused-appellants guilty beyond reasonable doubt of simple
Fiscal Macapagal: imprudence resulting in serious physical injuries is hereby
AFFIRMED in toto.
Q: And was that the correct respon[se] to the medical problem that
was presented to Dr. Jarcia and Dra. Bastan? SO ORDERED.8

A: I would say at that stage, yes. Because they have presented the The petitioners filed a motion for reconsideration, but it was denied
patient and the history. "At sabi nila, nadaanan lang po ito." And by the CA in its May 19, 2009 Resolution.
then, considering their year of residency they are still junior
residents, and they are not also orthopedic residents but general
surgery residents, it’s entirely different thing. Because if you are an Hence, this petition.
orthopedic resident, I am not trying to say…but if I were an
orthopedic resident, there would be more precise and accurate The petitioners pray for the reversal of the decision of both the RTC
decision compare to a general surgery resident in so far as involved. and the CA anchored on the following

Q: You mean to say there is no supervisor attending the emergency GROUNDS-

room?
1. IN AFFIRMING ACCUSED-PETITIONERS’
A: At the emergency room, at the Manila Doctor’s Hospital, the CONVICTION, THE COURT OF APPEALS ERRED
supervisor there is a consultant that usually comes from a family IN NOT HOLDING THAT THE ACTUAL, DIRECT,
medicine. They see where a certain patient have to go and then if IMMEDIATE, AND PROXIMATE CAUSE OF THE
they cannot manage it, they refer it to the consultant on duty. Now at PHYSICAL INJURY OF THE PATIENT (FRACTURE
OF THE LEG BONE OR TIBIA), WHICH
 P a g e | 161

REQUIRED MEDICAL ATTENDANCE FOR MORE The foregoing can be synthesized into two basic issues: [1] whether
THAN THIRTY (30) DAYS AND INCAPACITATED or not the doctrine of res ipsa loquitur is applicable in this case; and
HIM FROM PERFORMING HIS CUSTOMARY [2] whether or not the petitioners are liable for criminal negligence.
DUTY DURING THE SAME PERIOD OF TIME,
WAS THE VEHICULAR ACCIDENT WHERE THE THE COURT’S RULING
PATIENT’S RIGHT LEG WAS HIT BY A TAXI, NOT
THE FAILURE OF THE ACCUSED-PETITIONERS The CA is correct in finding that there was negligence on the part of
TO SUBJECT THE PATIENT’S WHOLE LEG TO AN the petitioners. After a perusal of the records, however, the Court is
X-RAY EXAMINATION. not convinced that the petitioners are guilty of criminal negligence
complained of. The Court is also of the view that the CA erred in
2. THE COURT OF APPEALS ERRED IN applying the doctrine of res ipsa loquitur in this particular case.
DISREGARDING ESTABLISHED FACTS CLEARLY
NEGATING PETITIONERS’ ALLEGED As to the Application of The Doctrine of Res Ipsa Loquitur
NEGLIGENCE OR IMPRUDENCE.
SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION This doctrine of res ipsa loquitur means "Where the thing which
OF THE PROSECUTION’S EXPERT WITNESS, DR. causes injury is shown to be under the management of the defendant,
CIRILO TACATA, THAT PETITIONERS WERE and the accident is such as in the ordinary course of things does not
NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE happen if those who have the management use proper care, it affords
COMPLAINED OF. reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." The Black's
Law Dictionary defines the said doctrine. Thus:
3. THE COURT OF APPEALS ERRED IN HOLDING
THAT THE FAILURE OF PETITIONERS TO
SUBJECT THE PATIENT’S WHOLE LEG TO AN X- The thing speaks for itself. Rebuttable presumption or inference that
RAY EXAMINATION PROLONGED THE PAIN AND defendant was negligent, which arises upon proof that the
SUFFERING OF THE PATIENT, SUCH instrumentality causing injury was in defendant's exclusive control,
CONCLUSION BEING UNSUPPORTED BY, AND and that the accident was one which ordinarily does not happen in
EVEN CONTRARY TO, THE EVIDENCE ON absence of negligence. Res ipsa loquitur is a rule of evidence
RECORD. whereby negligence of the alleged wrongdoer may be inferred from
the mere fact that the accident happened provided the character of
the accident and circumstances attending it lead reasonably to belief
4. ASSUMING ARGUENDO THAT THE PATIENT that in the absence of negligence it would not have occurred and that
EXPERIENCED PROLONGED PAIN AND thing which caused injury is shown to have been under the
SUFFERING, THE COURT OF APPEALS ERRED IN management and control of the alleged wrongdoer. Under this
NOT HOLDING THAT THE ALLEGED PAIN AND doctrine, the happening of an injury permits an inference of
SUFFERING WERE DUE TO THE UNJUSTIFIED negligence where plaintiff produces substantial evidence that the
FAILURE OF THE PATIENT’S MOTHER, A NURSE injury was caused by an agency or instrumentality under the
HERSELF, TO IMMEDIATELY BRING THE exclusive control and management of defendant, and that the
PATIENT BACK TO THE HOSPITAL, AS ADVISED occurrence was such that in the ordinary course of things would not
BY THE PETITIONERS, AFTER HE COMPLAINED happen if reasonable care had been used.10
OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE
REACHED HOME AFTER HE WAS SEEN BY
PETITIONERS AT THE HOSPITAL. THUS, THE The doctrine of res ipsa loquitur as a rule of evidence is unusual to
PATIENT’S ALLEGED INJURY (PROLONGED the law of negligence which recognizes that prima facie negligence
PAIN AND SUFFERING) WAS DUE TO HIS OWN may be established without direct proof and furnishes a substitute for
MOTHER’S ACT OR OMISSION. specific proof of negligence. The doctrine, however, is not a rule of
substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and
5. THE COURT OF APPEALS ERRED IN NOT circumstances of a given case, is not meant to and does not dispense
HOLDING THAT NO PHYSICIAN-PATIENT with the requirement of proof of culpable negligence on the party
RELATIONSHIP EXISTED BETWEEN charged. It merely determines and regulates what shall be prima
PETITIONERS AND PATIENT ALFONSO facie evidence thereof and helps the plaintiff in proving a breach of
SANTIAGO, JR., PETITIONERS NOT BEING THE the duty. The doctrine can be invoked when and only when, under
LATTER’S ATTENDING PHYSICIAN AS THEY the circumstances involved, direct evidence is absent and not readily
WERE MERELY REQUESTED BY THE available.11
EMERGENCY ROOM (ER) NURSE TO SEE THE
PATIENT WHILE THEY WERE PASSING BY THE
ER FOR THEIR LUNCH. The requisites for the application of the doctrine of res ipsa loquitur
are: (1) the accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality or agency which
6. THE COURT OF APPEALS GRAVELY ERRED IN caused the injury was under the exclusive control of the person in
NOT ACQUITTING ACCUSED-PETITIONERS OF charge; and (3) the injury suffered must not have been due to any
THE CRIME CHARGED."9 voluntary action or contribution of the person injured.12
 P a g e | 162

In this case, the circumstances that caused patient Roy Jr.’s injury Q: When Alfonso Santiago, Jr. was brought to you by his mother,
and the series of tests that were supposed to be undergone by him to what did you do by way of physicians as first step?
determine the extent of the injury suffered were not under the
exclusive control of Drs. Jarcia and Bastan. It was established that A: As usual, I examined the patient physically and, at that time as I
they are mere residents of the Manila Doctors Hospital at that time have said, the patient could not walk so I [began] to suspect that
who attended to the victim at the emergency room.13 While it may probably he sustained a fracture as a result of a vehicular accident.
be true that the circumstances pointed out by the courts below seem So I examined the patient at that time, the involved leg, I don’t know
doubtless to constitute reckless imprudence on the part of the if that is left or right, the involved leg then was swollen and the
petitioners, this conclusion is still best achieved, not through the patient could not walk, so I requested for the x-ray of [the] lower leg.
scholarly assumptions of a layman like the patient’s mother, but by
the unquestionable knowledge of expert witness/es. As to whether Q: What part of the leg, doctor, did you request to be examined?
the petitioners have exercised the requisite degree of skill and care in
treating patient Roy, Jr. is generally a matter of expert opinion.
A: If we refer for an x-ray, usually, we suspect a fracture whether in
approximal, middle or lebistal tinial, we usually x-ray the entire
As to Dr. Jarcia and Dr. Bastan’s negligence extremity.

The totality of the evidence on record clearly points to the Q: And what was the result?
negligence of the petitioners. At the risk of being repetitious, the
Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are
criminally negligent in this case. A: Well, I can say that it was a spiral fracture of the mid-tibial, it is
the bigger bone of the leg.
Negligence is defined as the failure to observe for the protection of
the interests of another person that degree of care, precaution, and Q: And when you say spiral, doctor, how long was this fracture?
vigilance which the circumstances justly demand, whereby such
other person suffers injury.14 A: When we say spiral, it is a sort of letter S, the length was about
six (6) to eight (8) centimeters.
Reckless imprudence consists of voluntarily doing or failing to do,
without malice, an act from which material damage results by reason Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
of an inexcusable lack of precaution on the part of the person
performing or failing to perform such act.15 (Witness pointing to his lower leg)

The elements of simple negligence are: (1) that there is lack of A: The tibial is here, there are two bones here, the bigger one is the
precaution on the part of the offender, and (2) that the damage tibial and the smaller one is the fibula. The bigger one is the one that
impending to be caused is not immediate or the danger is not clearly get fractured.
manifest.16
Q: And in the course of your examination of Alfonso Santiago, Jr.
In this case, the Court is not convinced with moral certainty that the did you ask for the history of such injury?
petitioners are guilty of reckless imprudence or simple negligence.
The elements thereof were not proved by the prosecution beyond A: Yes, actually, that was a routine part of our examination that once
reasonable doubt. a patient comes in, before we actually examine the patient, we
request for a detailed history. If it is an accident, then, we request for
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in the exact mechanism of injuries.
pediatric orthopedic, although pointing to some medical procedures
that could have been done by Dr. Jarcia and Dr. Bastan, as Q: And as far as you can recall, Doctor, what was the history of that
physicians on duty, was not clear as to whether the injuries suffered injury that was told to you?
by patient Roy Jr. were indeed aggravated by the petitioners’
judgment call and their diagnosis or appreciation of the condition of
A: The patient was sideswiped, I don’t know if it is a car, but it is a
the victim at the time they assessed him. Thus:
vehicular accident.
Q: Will you please tell us, for the record, doctor, what is your
Q: Who did you interview?
specialization?
A: The mother.
A: At present I am the chairman department of orthopedic in UP-
PGH and I had special training in pediatric orthopedic for two (2)
years. Q: How about the child himself, Alfonso Santiago, Jr.?

Q: In June 1998, doctor, what was your position and what was your A: Normally, we do not interview the child because, usually, at his
specialization at that time? age, the answers are not accurate. So, it was the mother that I
interviewed.
A: Since 1980, I have been specialist in pediatric orthopedic.
 P a g e | 163

Q: And were you informed also of his early medication that was the region that was hit is the region of the foot, will the doctor
administered on Alfonso Santiago, Jr.? subject the entire leg for x-ray?

A: No, not actually medication. I was informed that this patient was A: I am an orthopedic surgeon, you have to subject an x-ray of
seen initially at the emergency room by the two (2) physicians that the leg. Because you have to consider the kind of fracture that
you just mentioned, Dr. Jarcia and Dra. Bastan, that time who the patient sustained would you say the exact mechanism of
happened to be my residents who were [on] duty at the emergency injury. For example spiral, "paikot yung bale nya," so it was
room. possible that the leg was run over, the patient fell, and it got
twisted. That’s why the leg seems to be fractured.17 [Emphases
xxxx supplied]

A: At the emergency room, at the Manila Doctor’s Hospital, the It can be gleaned from the testimony of Dr. Tacata that a thorough
supervisor there is a consultant that usually comes from a family examination was not performed on Roy Jr. As residents on duty at
medicine. They see where a certain patient have to go and then if the emergency room, Dr. Jarcia and Dr. Bastan were expected to
they cannot manage it, they refer it to the consultant on duty. Now at know the medical protocol in treating leg fractures and in attending
that time, I don’t why they don’t … Because at that time, I think, it to victims of car accidents. There was, however, no precise evidence
is the decision. Since the x-rays… and scientific explanation pointing to the fact that the delay in the
application of the cast to the patient’s fractured leg because of failure
xxx to immediately diagnose the specific injury of the patient, prolonged
the pain of the child or aggravated his condition or even caused
further complications. Any person may opine that had patient Roy
Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not Jr. been treated properly and given the extensive X-ray examination,
even an orthopedic specialist. the extent and severity of the injury, spiral fracture of the mid-tibial
part or the bigger bone of the leg, could have been detected early on
A: They are general surgeon residents. You have to man[x] the and the prolonged pain and suffering of Roy Jr. could have been
emergency room, including neurology, orthopedic, general prevented. But still, that opinion, even how logical it may seem
surgery, they see everything at the emergency room. would not, and could not, be enough basis to hold one criminally
liable; thus, a reasonable doubt as to the petitioners’ guilt.
xxxx
Although the Court sympathizes with the plight of the mother and
Q: But if initially, Alfonso Santiago, Jr. and his case was presented the child in this case, the Court is bound by the dictates of justice
to you at the emergency room, you would have subjected the entire which hold inviolable the right of the accused to be presumed
foot to x-ray even if the history that was given to Dr. Jarcia and Dra. innocent until proven guilty beyond reasonable doubt. The Court,
Bastan is the same? nevertheless, finds the petitioners civilly liable for their failure to
sufficiently attend to Roy Jr.’s medical needs when the latter was
A: I could not directly say yes, because it would still depend on my rushed to the ER, for while a criminal conviction requires proof
examination, we cannot subject the whole body for x-ray if we think beyond reasonable doubt, only a preponderance of evidence is
that the damaged was only the leg. required to establish civil liability. Taken into account also was the
fact that there was no bad faith on their part.
Q: Not the entire body but the entire leg?
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi
driver who hit the victim. It may be true that the actual, direct,
A: I think, if my examination requires it, I would.
immediate, and proximate cause of the injury (fracture of the leg
bone or tibia) of Roy Jr. was the vehicular accident when he was hit
Q: So, you would conduct first an examination? by a taxi. The petitioners, however, cannot simply invoke such fact
alone to excuse themselves from any liability. If this would be so,
A: Yes, sir. doctors would have a ready defense should they fail to do their job in
attending to victims of hit-and-run, maltreatment, and other crimes
Q: And do you think that with that examination that you would have of violence in which the actual, direct, immediate, and proximate
conducted you would discover the necessity subjecting the entire cause of the injury is indubitably the act of the perpetrator/s.
foot for x-ray?
In failing to perform an extensive medical examination to determine
A: It is also possible but according to them, the foot and the ankle the extent of Roy Jr.’s injuries, Dr. Jarcia and Dr. Bastan were
were swollen and not the leg, which sometimes normally happens remiss of their duties as members of the medical profession.
that the actual fractured bone do not get swollen. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should
xxxx have referred the patient to another doctor with sufficient training
and experience instead of assuring him and his mother that
everything was all right.
Q: Doctor, if you know that the patient sustained a fracture on
the ankle and on the foot and the history that was told to you is
 P a g e | 164

This Court cannot also stamp its imprimatur on the petitioners’ Article II, Section 1 of the Code of Medical Ethics of the Medical
contention that no physician-patient relationship existed between Profession in the Philippines states:
them and patient Roy Jr., since they were not his attending
physicians at that time. They claim that they were merely requested A physician should attend to his patients faithfully and
by the ER nurse to see the patient while they were passing by the ER conscientiously. He should secure for them all possible benefits that
for their lunch. Firstly, this issue was never raised during the trial at may depend upon his professional skill and care. As the sole tribunal
the RTC or even before the CA. The petitioners, therefore, raise the to adjudge the physician’s failure to fulfill his obligation to his
want of doctor-patient relationship for the first time on appeal with patients is, in most cases, his own conscience, violation of this rule
this Court. It has been settled that "issues raised for the first time on on his part is discreditable and inexcusable.22
appeal cannot be considered because a party is not permitted to
change his theory on appeal. To allow him to do so is unfair to the Established medical procedures and practices, though in constant
other party and offensive to the rules of fair play, justice and due instability, are devised for the purpose of preventing complications.
process."18 Stated differently, basic considerations of due process In this case, the petitioners failed to observe the most prudent
dictate that theories, issues and arguments not brought to the medical procedure under the circumstances to prevent the
attention of the trial court need not be, and ordinarily will not be, complications suffered by a child of tender age.
considered by a reviewing court.19
As to the Award of Damages
Assuming again for the sake of argument that the petitioners may
still raise this issue of "no physician–patient relationship," the Court
finds and so holds that there was a "physician–patient" relationship While no criminal negligence was found in the petitioners’ failure to
in this case. administer the necessary medical attention to Roy Jr., the Court
holds them civilly liable for the resulting damages to their patient.
While it was the taxi driver who ran over the foot or leg of Roy Jr.,
In the case of Lucas v. Tuaño,20 the Court wrote that "[w]hen a their negligence was doubtless contributory.
patient engages the services of a physician, a physician-patient
relationship is generated. And in accepting a case, the physician, for
all intents and purposes, represents that he has the needed training It appears undisputed that the amount of ₱ 3,850.00, as expenses
and skill possessed by physicians and surgeons practicing in the incurred by patient Roy Jr., was adequately supported by receipts.
same field; and that he will employ such training, care, and skill in The Court, therefore, finds the petitioners liable to pay this amount
the treatment of the patient. Thus, in treating his patient, a physician by way of actual damages.
is under a duty to exercise that degree of care, skill and diligence
which physicians in the same general neighborhood and in the same The Court is aware that no amount of compassion can suffice to ease
general line of practice ordinarily possess and exercise in like cases. the sorrow felt by the family of the child at that time. Certainly, the
Stated otherwise, the physician has the obligation to use at least the award of moral and exemplary damages in favor of Roy Jr. in the
same level of care that any other reasonably competent physician amount of ₱ 100,000.00 and ₱ 50,000.00, respectively, is proper in
would use to treat the condition under similar circumstances." this case.

Indubitably, a physician-patient relationship exists between the It is settled that moral damages are not punitive in nature, but are
petitioners and patient Roy Jr. Notably, the latter and his mother designed to compensate and alleviate in some way the physical
went to the ER for an immediate medical attention. The petitioners suffering, mental anguish, fright, serious anxiety, besmirched
allegedly passed by and were requested to attend to the victim reputation, wounded feelings, moral shock, social humiliation, and
(contrary to the testimony of Dr. Tacata that they were, at that time, similar injury unjustly inflicted on a person. Intended for the
residents on duty at the ER).21 They obliged and examined the restoration of the psychological or emotional status quo ante, the
victim, and later assured the mother that everything was fine and that award of moral damages is designed to compensate emotional injury
they could go home. Clearly, a physician-patient relationship was suffered, not to impose a penalty on the wrongdoer.23
established between the petitioners and the patient Roy Jr.
The Court, likewise, finds the petitioners also liable for exemplary
To repeat for clarity and emphasis, if these doctors knew from the damages in the said amount.1âwphi1 Article 2229 of the Civil Code
start that they were not in the position to attend to Roy Jr., a provides that exemplary damages may be imposed by way of
vehicular accident victim, with the degree of diligence and example or correction for the public good.
commitment expected of every doctor in a case like this, they should
have not made a baseless assurance that everything was all right. By WHEREFORE, the petition is PARTLY GRANTED. The
doing so, they deprived Roy Jr. of adequate medical attention that Decision of the Court of Appeals dated August 29, 2008 is
placed him in a more dangerous situation than he was already in. REVERSED and SET ASIDE. A new judgment is entered
What petitioners should have done, and could have done, was to ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of
refer Roy Jr. to another doctor who could competently and the crime of reckless imprudence resulting to serious physical
thoroughly examine his injuries. injuries but declaring them civilly liable in the amounts of:

All told, the petitioners were, indeed, negligent but only civilly, and (1) ₱ 3,850.00 as actual damages;
not criminally, liable as the facts show.
(2) ₱ 100,000.00 as moral damages;
 P a g e | 165

(3) ₱ 50,000.00 as exemplary damages; and (5) the ophthalmoscopy4 on Peter’s eyes was used. On that particular
consultation, Dr. Tuaño diagnosed that Peter was suffering from
(4) Costs of the suit. conjunctivitis5 or "sore eyes." Dr. Tuaño then prescribed Spersacet-
C6 eye drops for Peter and told the latter to return for follow-up after
with interest at the rate of 6% per annum from the date of the filing one week.
of the Information. The rate shall be 12% interest per annum from
the finality of judgment until fully paid. As instructed, Peter went back to Dr. Tuaño on 9 September 1988.
Upon examination, Dr. Tuaño told Peter that the "sore eyes" in the
latter’s right eye had already cleared up and he could discontinue the
SO ORDERED. Spersacet-C. However, the same eye developed Epidemic Kerato
Conjunctivitis (EKC),7 a viral infection. To address the new problem
G.R. No. 178763               April 21, 2009 with Peter’s right eye, Dr. Tuaño prescribed to the former a steroid-
based eye drop called Maxitrol,8 a dosage of six (6) drops per day.9
PETER PAUL PATRICK LUCAS, FATIMA To recall, Peter had already been using Maxitrol prior to his consult
with Dr. Tuaño.
GLADYS LUCAS, ABBEYGAIL LUCAS AND
GILLIAN LUCAS, Petitioners, On 21 September 1988, Peter saw Dr. Tuaño for a follow-up
vs. consultation. After examining both of Peter’s eyes, Dr. Tuaño
DR. PROSPERO MA. C. TUAÑO, Respondent. instructed the former to taper down10 the dosage of Maxitrol,
because the EKC in his right eye had already resolved. Dr. Tuaño
DECISION specifically cautioned Peter that, being a steroid, Maxitrol had to be
withdrawn gradually; otherwise, the EKC might recur.11
CHICO-NAZARIO, J.:
Complaining of feeling as if there was something in his eyes, Peter
1
returned to Dr. Tuaño for another check-up on 6 October 1988. Dr.
In this petition for review on certiorari under Rule 45 of the Revised Tuaño examined Peter’s eyes and found that the right eye had once
Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys more developed EKC. So, Dr. Tuaño instructed Peter to resume the
Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the use of Maxitrol at six (6) drops per day.
27 September 2006 Decision2 and 3 July 2007 Resolution,3 both of
the Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian On his way home, Peter was unable to get a hold of Maxitrol, as it
Lucas v. Prospero Ma. C. Tuaño." was out of stock. Consequently, Peter was told by Dr. Tuano to take,
instead, Blephamide12 another steroid-based medication, but with a
lower concentration, as substitute for the unavailable Maxitrol, to be
In the questioned decision and resolution, the Court of Appeals used three (3) times a day for five (5) days; two (2) times a day for
affirmed the 14 July 2000 Decision of the Regional Trial Court five (5) days; and then just once a day.13
(RTC), Branch 150, Makati City, dismissing the complaint filed by
petitioners in a civil case entitled, "Peter Paul Patrick Lucas, Fatima
Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. Several days later, on 18 October 1988, Peter went to see Dr. Tuaño
C. Tuaño," docketed as Civil Case No. 92-2482. at his clinic, alleging severe eye pain, feeling as if his eyes were
about to "pop-out," a headache and blurred vision. Dr. Tuaño
examined Peter’s eyes and discovered that the EKC was again
From the record of the case, the established factual antecedents of present in his right eye. As a result, Dr. Tuaño told Peter to resume
the present petition are: the maximum dosage of Blephamide.

Sometime in August 1988, petitioner Peter Paul Patrick Lucas Dr. Tuaño saw Peter once more at the former’s clinic on 4
(Peter) contracted "sore eyes" in his right eye. November 1988. Dr. Tuaño’s examination showed that only the
periphery of Peter’s right eye was positive for EKC; hence, Dr.
On 2 September 1988, complaining of a red right eye and swollen Tuaño prescribed a lower dosage of Blephamide.
eyelid, Peter made use of his health care insurance issued by
Philamcare Health Systems, Inc. (Philamcare), for a possible It was also about this time that Fatima Gladys Lucas (Fatima),
consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter’s spouse, read the accompanying literature of Maxitrol and
Peter to respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr. Tuaño), found therein the following warning against the prolonged use of
an ophthalmologist at St. Luke’s Medical Center, for an eye consult. such steroids:

Upon consultation with Dr. Tuaño, Peter narrated that it had been WARNING:
nine (9) days since the problem with his right eye began; and that he
was already taking Maxitrol to address the problem in his eye.
According to Dr. Tuaño, he performed "ocular routine examination" Prolonged use may result in glaucoma, with damage to the optic
on Peter’s eyes, wherein: (1) a gross examination of Peter’s eyes and nerve, defects in visual acuity and fields of vision, and posterior,
their surrounding area was made; (2) Peter’s visual acuity were subcapsular cataract formation. Prolonged use may suppress the host
taken; (3) Peter’s eyes were palpated to check the intraocular response and thus increase the hazard of secondary ocular
pressure of each; (4) the motility of Peter’s eyes was observed; and infractions, in those diseases causing thinning of the cornea or
 P a g e | 166

sclera, perforations have been known to occur with the use of topical pressure17 (IOP) of Peter’s eyes, Dr. Tuaño discovered that the
steroids. In acute purulent conditions of the eye, steroids may mask tension in Peter’s right eye was 39.0 Hg, while that of his left was
infection or enhance existing infection. If these products are used for 17.0 Hg.18 Since the tension in Peter’s right eye was way over the
10 days or longer, intraocular pressure should be routinely normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr.
monitored even though it may be difficult in children and Tuaño ordered20 him to immediately discontinue the use of Maxitrol
uncooperative patients. and prescribed to the latter Diamox21 and Normoglaucon, instead.22
Dr. Tuaño also required Peter to go for daily check-up in order for
Employment of steroid medication in the treatment of herpes the former to closely monitor the pressure of the latter’s eyes.
simplex requires great caution.
On 15 December 1988, the tonometer reading of Peter’s right eye
xxxx yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuaño told
Peter to continue using Diamox and Normoglaucon. But upon
ADVERSE REACTIONS: Peter’s complaint of "stomach pains and tingling sensation in his
fingers,"23 Dr. Tuaño discontinued Peter’s use of Diamox.24
Adverse reactions have occurred with steroid/anti-infective
combination drugs which can be attributed to the steroid component, Peter went to see another ophthalmologist, Dr. Ramon T.
the anti-infective component, or the combination. Exact incidence Batungbacal (Dr. Batungbacal), on 21 December 1988, who
figures are not available since no denominator of treated patients is allegedly conducted a complete ophthalmological examination of
available. Peter’s eyes. Dr. Batungbacal’s diagnosis was Glaucoma25 O.D.26 He
recommended Laser Trabeculoplasty27 for Peter’s right eye.
Reactions occurring most often from the presence of the anti-
infective ingredients are allergic sensitizations. The reactions due to When Peter returned to Dr. Tuaño on 23 December 1988,28 the
the steroid component in decreasing order to frequency are elevation tonometer measured the IOP of Peter’s right eye to be 41.0 Hg,29
of intra-ocular pressure (IOP) with possible development of again, way above normal. Dr. Tuaño addressed the problem by
glaucoma, infrequent optic nerve damage; posterior subcapsular advising Peter to resume taking Diamox along with Normoglaucon.
cataract formation; and delayed wound healing.
During the Christmas holidays, Peter supposedly stayed in bed most
Secondary infection: The development of secondary has occurred of the time and was not able to celebrate the season with his family
after use of combination containing steroids and antimicrobials. because of the debilitating effects of Diamox.30
Fungal infections of the correa are particularly prone to develop
coincidentally with long-term applications of steroid. The possibility On 28 December 1988, during one of Peter’s regular follow-ups with
of fungal invasion must be considered in any persistent corneal Dr. Tuaño, the doctor conducted another ocular routine examination
ulceration where steroid treatment has been used. of Peter’s eyes. Dr. Tuaño noted the recurrence of EKC in Peter’s
right eye. Considering, however, that the IOP of Peter’s right eye
Secondary bacterial ocular infection following suppression of host was still quite high at 41.0 Hg, Dr. Tuaño was at a loss as to how to
responses also occurs. balance the treatment of Peter’s EKC vis-à-vis the presence of
glaucoma in the same eye. Dr. Tuaño, thus, referred Peter to Dr.
Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist
On 26 November 1988, Peter returned to Dr. Tuaño’s clinic, specializing in the treatment of glaucoma.31 Dr. Tuaño’s letter of
complaining of "feeling worse."14 It appeared that the EKC had referral to Dr. Agulto stated that:
spread to the whole of Peter’s right eye yet again. Thus, Dr. Tuaño
instructed Peter to resume the use of Maxitrol. Petitioners averred
that Peter already made mention to Dr. Tuaño during said visit of the Referring to you Mr. Peter Lucas for evaluation & possible
above-quoted warning against the prolonged use of steroids, but Dr. management. I initially saw him Sept. 2, 1988 because of
Tuaño supposedly brushed aside Peter’s concern as mere paranoia, conjunctivitis. The latter resolved and he developed EKC for which I
even assuring him that the former was taking care of him (Peter). gave Maxitrol. The EKC was recurrent after stopping steroid drops.
Around 1 month of steroid treatment, he noted blurring of vision &
pain on the R. however, I continued the steroids for the sake of the
Petitioners further alleged that after Peter’s 26 November 1988 visit EKC. A month ago, I noted iris atrophy, so I took the IOP and it was
to Dr. Tuaño, Peter continued to suffer pain in his right eye, which definitely elevated. I stopped the steroids immediately and has (sic)
seemed to "progress," with the ache intensifying and becoming more been treating him medically.
frequent.
It seems that the IOP can be controlled only with oral Diamox, and
Upon waking in the morning of 13 December 1988, Peter had no at the moment, the EKC has recurred and I’m in a fix whether to
vision in his right eye. Fatima observed that Peter’s right eye resume the steroid or not considering that the IOP is still
appeared to be bloody and swollen.15 Thus, spouses Peter and Fatima uncontrolled.32
rushed to the clinic of Dr. Tuaño. Peter reported to Dr. Tuaño that he
had been suffering from constant headache in the afternoon and
blurring of vision. On 29 December 1988, Peter went to see Dr. Agulto at the latter’s
clinic. Several tests were conducted thereat to evaluate the extent of
Peter’s condition. Dr. Agulto wrote Dr. Tuaño a letter containing the
Upon examination, Dr. Tuaño noted the hardness of Peter’s right following findings and recommendations:
eye. With the use of a tonometer16 to verify the exact intraocular
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Thanks for sending Peter Lucas. On examination conducted vision According to petitioners, after Dr. Aquino conducted an extensive
was 20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H evaluation of Peter’s eyes, the said doctor informed Peter that his
while on Normoglaucon BID OD & Diamox ½ tab every 6h po. eyes were relatively normal, though the right one sometimes
manifested maximum borderline tension. Dr. Aquino also confirmed
Slit lamp evaluation33 disclosed subepithelial corneal defect outer Dr. Tuaño’s diagnosis of tubular vision in Peter’s right eye.
OD. There was circumferential peripheral iris atrophy, OD. The Petitioners claimed that Dr. Aquino essentially told Peter that the
lenses were clear. latter’s condition would require lifetime medication and follow-ups.

Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with In May 1990 and June 1991, Peter underwent two (2) procedures of
temporal slope R>L. laser trabeculoplasty to attempt to control the high IOP of his right
eye.
Zeiss gonioscopy35 revealed basically open angles both eyes with
occasional PAS,36 OD. Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuaño
for the same, Peter, joined by: (1) Fatima, his spouse46; (2)
Rolly, I feel that Peter Lucas has really sustained significant Abbeygail, his natural child47; and (3) Gillian, his legitimate child48
glaucoma damage. I suggest that we do a baseline visual fields and with Fatima, instituted on 1 September 1992, a civil complaint for
push medication to lowest possible levels. If I may suggest further, I damages against Dr. Tuaño, before the RTC, Branch 150, Quezon
think we should prescribe Timolol37 BID38 OD in lieu of City. The case was docketed as Civil Case No. 92-2482.
Normoglaucon. If the IOP is still inadequate, we may try D’epifrin 39
BID OD (despite low PAS). I’m in favor of retaining Diamox or In their Complaint, petitioners specifically averred that as the "direct
similar CAI.40 consequence of [Peter’s] prolonged use of Maxitrol, [he] suffered
from steroid induced glaucoma which caused the elevation of his
If fields show further loss in say – 3 mos. then we should consider intra-ocular pressure. The elevation of the intra-ocular pressure of
trabeculoplasty. [Peter’s right eye] caused the impairment of his vision which
impairment is not curable and may even lead to total blindness."49
I trust that this approach will prove reasonable for you and Peter.41
Petitioners additionally alleged that the visual impairment of Peter’s
right eye caused him and his family so much grief. Because of his
Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr. present condition, Peter now needed close medical supervision
Agulto’s aforementioned letter. Though Peter’s right and left eyes forever; he had already undergone two (2) laser surgeries, with the
then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. possibility that more surgeries were still needed in the future; his
Tuaño still gave him a prescription for Timolol B.I.D. so Peter could career in sports casting had suffered and was continuing to suffer;50
immediately start using said medication. Regrettably, Timolol B.I.D. his anticipated income had been greatly reduced as a result of his
was out of stock, so Dr. Tuaño instructed Peter to just continue using "limited" capacity; he continually suffered from "headaches, nausea,
Diamox and Normoglaucon in the meantime. dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis,"51 etc.;
Peter’s relationships with his spouse and children continued to be
Just two days later, on 2 January 1989, the IOP of Peter’s right eye strained, as his condition made him highly irritable and sensitive; his
remained elevated at 21.0 Hg,42 as he had been without Diamox for mobility and social life had suffered; his spouse, Fatima, became the
the past three (3) days. breadwinner in the family;52 and his two children had been deprived
of the opportunity for a better life and educational prospects.
On 4 January 1989, Dr. Tuaño conducted a visual field study43 of Collectively, petitioners lived in constant fear of Peter becoming
Peter’s eyes, which revealed that the latter had tubular vision44 in his completely blind.53
right eye, while that of his left eye remained normal. Dr. Tuaño
directed Peter to religiously use the Diamox and Normoglaucon, as In the end, petitioners sought pecuniary award for their supposed
the tension of the latter’s right eye went up even further to 41.0 Hg pain and suffering, which were ultimately brought about by Dr.
in just a matter of two (2) days, in the meantime that Timolol B.I.D. Tuaño’s grossly negligent conduct in prescribing to Peter the
and D’epifrin were still not available in the market. Again, Dr. medicine Maxitrol for a period of three (3) months, without
Tuaño advised Peter to come for regular check-up so his IOP could monitoring Peter’s IOP, as required in cases of prolonged use of said
be monitored. medicine, and notwithstanding Peter’s constant complaint of intense
eye pain while using the same. Petitioners particularly prayed that
Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th and Dr. Tuaño be adjudged liable for the following amounts:
20th of January 1989 for check-up and IOP monitoring.
1. The amount of ₱2,000,000.00 to plaintiff Peter Lucas as
In the interregnum, however, Peter was prodded by his friends to and by way of compensation for his impaired vision.
seek a second medical opinion. On 13 January 1989, Peter consulted
Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in 2. The amount of ₱300,000.00 to spouses Lucas as and by
turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), way of actual damages plus such additional amounts that
another ophthalmologist who specializes in the treatment of may be proven during trial.
glaucoma and who could undertake the long term care of Peter’s
eyes.
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3. The amount of ₱1,000,000.00 as and by way of moral The RTC opined that petitioners failed to prove by preponderance of
damages. evidence that Dr. Tuaño was negligent in his treatment of Peter’s
condition. In particular, the record of the case was bereft of any
4. The amount of ₱500,000.00 as and by way of exemplary evidence to establish that the steroid medication and its dosage, as
damages. prescribed by Dr. Tuaño, caused Peter’s glaucoma. The trial court
reasoned that the "recognized standards of the medical community
5. The amount of ₱200,000.00 as and by way of attorney’s has not been established in this case, much less has causation been
fees plus costs of suit.54 established to render [Tuaño] liable."63 According to the RTC:

In rebutting petitioners’ complaint, Dr. Tuaño asserted that the [Petitioners] failed to establish the duty required of a medical
"treatment made by [him] more than three years ago has no causal practitioner against which Peter Paul’s treatment by defendant can
connection to [Peter’s] present glaucoma or condition."55 Dr. Tuaño be compared with. They did not present any medical expert or even a
explained that "[d]rug-induced glaucoma is temporary and curable, medical doctor to convince and expertly explain to the court the
steroids have the side effect of increasing intraocular pressure. established norm or duty required of a physician treating a patient, or
Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or whether the non taking (sic) by Dr. Tuaño of Peter Paul’s pressure a
EKC which is an infiltration of the cornea as a result of deviation from the norm or his non-discovery of the glaucoma in the
conjunctivitis or sore eyes."56 Dr. Tuaño also clarified that (1) course of treatment constitutes negligence. It is important and
"[c]ontrary to [petitioners’] fallacious claim, [he] did NOT indispensable to establish such a standard because once it is
continually prescribe the drug Maxitrol which contained steroids for established, a medical practitioner who departed thereof breaches his
any prolonged period"57 and "[t]he truth was the Maxitrol was duty and commits negligence rendering him liable. Without such
discontinued x x x as soon as EKC disappeared and was resumed testimony or enlightenment from an expert, the court is at a loss as to
only when EKC reappeared"58; (2) the entire time he was treating what is then the established norm of duty of a physician against
Peter, he "continually monitored the intraocular pressure of [Peter’s which defendant’s conduct can be compared with to determine
eyes] by palpating the eyes and by putting pressure on the eyeballs," negligence.64
and no hardening of the same could be detected, which meant that
there was no increase in the tension or IOP, a possible side reaction The RTC added that in the absence of "any medical evidence to the
to the use of steroid medications; and (3) it was only on 13 contrary, this court cannot accept [petitioners’] claim that the use of
December 1988 that Peter complained of a headache and blurred steroid is the proximate cause of the damage sustained by [Peter’s]
vision in his right eye, and upon measuring the IOP of said eye, it eye."65
was determined for the first time that the IOP of the right eye had an
elevated value. Correspondingly, the RTC accepted Dr. Tuaño’s medical opinion
that "Peter Paul must have been suffering from normal tension
But granting for the sake of argument that the "steroid treatment of glaucoma, meaning, optic nerve damage was happening but no
[Peter’s] EKC caused the steroid induced glaucoma,"59 Dr. Tuaño elevation of the eye pressure is manifested, that the steroid treatment
argued that: actually unmasked the condition that resulted in the earlier treatment
of the glaucoma. There is nothing in the record to contradict such
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As testimony. In fact, plaintiff’s Exhibit ‘S’ even tends to support
soon as the intake of steroids is discontinued, the intraocular them."
pressure automatically is reduced. Thus, [Peter’s] glaucoma can only
be due to other causes not attributable to steroids, certainly not Undaunted, petitioners appealed the foregoing RTC decision to the
attributable to [his] treatment of more than three years ago x x x. Court of Appeals. Their appeal was docketed as CA-G.R. CV No.
68666.
From a medical point of view, as revealed by more current
examination of [Peter], the latter’s glaucoma can only be long On 27 September 2006, the Court of Appeals rendered a decision in
standing glaucoma, open angle glaucoma, because of the large C:D CA-G.R. CV No. 68666 denying petitioners’ recourse and affirming
ratio. The steroids provoked the latest glaucoma to be revealed the appealed RTC Decision. The fallo of the judgment of the
earlier as [Peter] remained asymptomatic prior to steroid application. appellate court states:
Hence, the steroid treatment was in fact beneficial to [Peter] as it
revealed the incipient open angle glaucoma of [Peter] to allow WHEREFORE, the Decision appealed from is AFFIRMED.66
earlier treatment of the same.60
The Court of Appeals faulted petitioners because they –
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No.
92-2482 "for insufficiency of evidence."61 The decretal part of said [D]id not present any medical expert to testify that Dr. Tuano’s
Decision reads: prescription of Maxitrol and Blephamide for the treatment of EKC
on Peter’s right eye was not proper and that his palpation of Peter’s
Wherefore, premises considered, the instant complaint is dismissed right eye was not enough to detect adverse reaction to steroid. Peter
for insufficiency of evidence. The counter claim (sic) is likewise testified that Dr. Manuel Agulto told him that he should not have
dismissed in the absence of bad faith or malice on the part of used steroid for the treatment of EKC or that he should have used it
plaintiff in filing the suit.62 only for two (2) weeks, as EKC is only a viral infection which will
cure by itself. However, Dr. Agulto was not presented by
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[petitioners] as a witness to confirm what he allegedly told Peter by preponderance of evidence, their claim for damages against Dr.
and, therefore, the latter’s testimony is hearsay. Under Rule 130, Tuaño.
Section 36 of the Rules of Court, a witness can testify only to those
facts which he knows of his own personal knowledge, x x x. Evidently, said issue constitutes a question of fact, as we are asked
Familiar and fundamental is the rule that hearsay testimony is to revisit anew the factual findings of the Court of Appeals, as well
inadmissible as evidence.67 as of the RTC. In effect, petitioners would have us sift through the
evidence on record and pass upon whether there is sufficient basis to
Like the RTC, the Court of Appeals gave great weight to Dr. establish Dr. Tuaño’s negligence in his treatment of Peter’s eye
Tuaño’s medical judgment, specifically the latter’s explanation that: condition. This question clearly involves a factual inquiry, the
determination of which is not within the ambit of this Court’s power
[W]hen a doctor sees a patient, he cannot determine whether or not of review under Rule 45 of the 1997 Rules Civil Procedure, as
the latter would react adversely to the use of steroids, that it was amended.70
only on December 13, 1989, when Peter complained for the first
time of headache and blurred vision that he observed that the Elementary is the principle that this Court is not a trier of facts; only
pressure of the eye of Peter was elevated, and it was only then that errors of law are generally reviewed in petitions for review on
he suspected that Peter belongs to the 5% of the population who certiorari criticizing decisions of the Court of Appeals. Questions of
reacts adversely to steroids.68 fact are not entertained.71

Petitioners’ Motion for Reconsideration was denied by the Court of Nonetheless, the general rule that only questions of law may be
Appeals in a Resolution dated 3 July 2007. raised on appeal in a petition for review under Rule 45 of the Rules
of Court admits of certain exceptions, including the circumstance
Hence, this Petition for Review on Certiorari under Rule 45 of the when the finding of fact of the Court of Appeals is premised on the
Revised Rules of Court premised on the following assignment of supposed absence of evidence, but is contradicted by the evidence on
errors: record. Although petitioners may not explicitly invoke said
exception, it may be gleaned from their allegations and arguments in
I. the instant Petition.1avvphi1.zw+

THE COURT OF APPEALS COMMITTED GRAVE Petitioners contend, that "[c]ontrary to the findings of the Honorable
REVERSIBLE ERROR IN AFFIRMING THE DECISION OF THE Court of Appeals, [they] were more than able to establish that: Dr.
TRIAL COURT DISMISSING THE PETITIONERS’ Tuaño ignored the standard medical procedure for ophthalmologists,
COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT administered medication with recklessness, and exhibited an absence
ON THE GROUND OF INSUFFICIENCY OF EVIDENCE; of competence and skills expected from him."72 Petitioners reject the
necessity of presenting expert and/or medical testimony to establish
(1) the standard of care respecting the treatment of the disorder
II. affecting Peter’s eye; and (2) whether or not negligence attended Dr.
Tuaño’s treatment of Peter, because, in their words –
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN DISMISSING THE PETITIONERS’ That Dr. Tuaño was grossly negligent in the treatment of Peter’s
COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT simple eye ailment is a simple case of cause and effect. With mere
ON THE GROUND THAT NO MEDICAL EXPERT WAS documentary evidence and based on the facts presented by the
PRESENTED BY THE PETITIONERS TO PROVE THEIR petitioners, respondent can readily be held liable for damages even
CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE without any expert testimony. In any case, however, and contrary to
RESPONDENT; AND the finding of the trial court and the Court of Appeals, there was a
medical expert presented by the petitioner showing the recklessness
III. committed by [Dr. Tuaño] – Dr. Tuaño himself. [Emphasis
supplied.]
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT They insist that Dr. Tuaño himself gave sufficient evidence to
LIABLE TO THE PETITIONERS’ FOR ACTUAL, MORAL AND establish his gross negligence that ultimately caused the impairment
EXEMPLARY DAMAGES, ASIDE FROM ATTORNEY’S FEES, of the vision of Peter’s right eye,73 i.e., that "[d]espite [Dr. Tuaño’s]
COSTS OF SUIT, AS A RESULT OF HIS GROSS knowledge that 5% of the population reacts adversely to Maxitrol,
NEGLIGENCE.69 [he] had no qualms whatsoever in prescribing said steroid to Peter
without first determining whether or not the (sic) Peter belongs to
A reading of the afore-quoted reversible errors supposedly the 5%."74
committed by the Court of Appeals in its Decision and Resolution
would reveal that petitioners are fundamentally assailing the finding We are not convinced. The judgments of both the Court of Appeals
of the Court of Appeals that the evidence on record is insufficient to and the RTC are in accord with the evidence on record, and we are
establish petitioners’ entitlement to any kind of damage. Therefore, accordingly bound by the findings of fact made therein.
it could be said that the sole issue for our resolution in the Petition at
bar is whether the Court of Appeals committed reversible error in
affirming the judgment of the RTC that petitioners failed to prove,
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Petitioners’ position, in sum, is that Peter’s glaucoma is the direct Even so, proof of breach of duty on the part of the attending
result of Dr. Tuaño’s negligence in his improper administration of physician is insufficient, for there must be a causal connection
the drug Maxitrol; "thus, [the latter] should be liable for all the between said breach and the resulting injury sustained by the patient.
damages suffered and to be suffered by [petitioners]."75 Clearly, the Put in another way, in order that there may be a recovery for an
present controversy is a classic illustration of a medical negligence injury, it must be shown that the "injury for which recovery is sought
case against a physician based on the latter’s professional must be the legitimate consequence of the wrong done; the
negligence. In this type of suit, the patient or his heirs, in order to connection between the negligence and the injury must be a direct
prevail, is required to prove by preponderance of evidence that the and natural sequence of events, unbroken by intervening efficient
physician failed to exercise that degree of skill, care, and learning causes";81 that is, the negligence must be the proximate cause of the
possessed by other persons in the same profession; and that as a injury. And the proximate cause of an injury is that cause, which, in
proximate result of such failure, the patient or his heirs suffered the natural and continuous sequence, unbroken by any efficient
damages. intervening cause, produces the injury, and without which the result
would not have occurred.82
For lack of a specific law geared towards the type of negligence
committed by members of the medical profession, such claim for Just as with the elements of duty and breach of the same, in order to
damages is almost always anchored on the alleged violation of establish the proximate cause [of the injury] by a preponderance of
Article 2176 of the Civil Code, which states that: the evidence in a medical malpractice action, [the patient] must
similarly use expert testimony, because the question of whether the
ART. 2176. Whoever by act or omission causes damage to another, alleged professional negligence caused [the patient’s] injury is
there being fault or negligence, is obliged to pay for the damage generally one for specialized expert knowledge beyond the ken of
done. Such fault or negligence, if there is no pre-existing contractual the average layperson; using the specialized knowledge and training
relation between the parties, is called a quasi-delict and is governed of his field, the expert’s role is to present to the [court] a realistic
by the provisions of this Chapter. assessment of the likelihood that [the physician’s] alleged
negligence caused [the patient’s] injury.83
In medical negligence cases, also called medical malpractice suits,
there exist a physician-patient relationship between the doctor and From the foregoing, it is apparent that medical negligence cases are
the victim. But just like any other proceeding for damages, four best proved by opinions of expert witnesses belonging in the same
essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) general neighborhood and in the same general line of practice as
proximate causation,76 must be established by the plaintiff/s. All the defendant physician or surgeon. The deference of courts to the
four (4) elements must co-exist in order to find the physician expert opinion of qualified physicians [or surgeons] stems from the
negligent and, thus, liable for damages. former’s realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently
When a patient engages the services of a physician, a physician- evaluating;84 hence, the indispensability of expert testimonies.
patient relationship is generated. And in accepting a case, the
physician, for all intents and purposes, represents that he has the In the case at bar, there is no question that a physician-patient
needed training and skill possessed by physicians and surgeons relationship developed between Dr. Tuaño and Peter when Peter
practicing in the same field; and that he will employ such training, went to see the doctor on 2 September 1988, seeking a consult for
care, and skill in the treatment of the patient.77 Thus, in treating his the treatment of his sore eyes. Admittedly, Dr. Tuaño, an
patient, a physician is under a duty to [the former] to exercise that ophthalmologist, prescribed Maxitrol when Peter developed and had
degree of care, skill and diligence which physicians in the same recurrent EKC. Maxitrol or neomycin/polymyxin B
general neighborhood and in the same general line of practice sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-
ordinarily possess and exercise in like cases.78 Stated otherwise, the infective steroid combination in sterile form for topical application. 85
physician has the duty to use at least the same level of care that any It is the drug which petitioners claim to have caused Peter’s
other reasonably competent physician would use to treat the glaucoma.
condition under similar circumstances.
However, as correctly pointed out by the Court of Appeals, "[t]he
This standard level of care, skill and diligence is a matter best onus probandi was on the patient to establish before the trial court
addressed by expert medical testimony, because the standard of care that the physicians ignored standard medical procedure, prescribed
in a medical malpractice case is a matter peculiarly within the and administered medication with recklessness and exhibited an
knowledge of experts in the field.79 absence of the competence and skills expected of general
practitioners similarly situated."86 Unfortunately, in this case, there
There is breach of duty of care, skill and diligence, or the improper was absolute failure on the part of petitioners to present any expert
performance of such duty, by the attending physician when the testimony to establish: (1) the standard of care to be implemented by
patient is injured in body or in health [and this] constitutes the competent physicians in treating the same condition as Peter’s under
actionable malpractice.80 Proof of such breach must likewise rest similar circumstances; (2) that, in his treatment of Peter, Dr. Tuaño
upon the testimony of an expert witness that the treatment accorded failed in his duty to exercise said standard of care that any other
to the patient failed to meet the standard level of care, skill and competent physician would use in treating the same condition as
diligence which physicians in the same general neighborhood and in Peter’s under similar circumstances; and (3) that the injury or
the same general line of practice ordinarily possess and exercise in damage to Peter’s right eye, i.e., his glaucoma, was the result of his
like cases. use of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’ failure to
prove the first element alone is already fatal to their cause.
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Petitioners maintain that Dr. Tuaño failed to follow in Peter’s case Even if we are to assume that Dr. Tuaño committed negligent acts in
the required procedure for the prolonged use of Maxitrol. But what his treatment of Peter’s condition, the causal connection between Dr.
is actually the required procedure in situations such as in the case at Tuaño’s supposed negligence and Peter’s injury still needed to be
bar? To be precise, what is the standard operating procedure when established. The critical and clinching factor in a medical negligence
ophthalmologists prescribe steroid medications which, admittedly, case is proof of the causal connection between the negligence which
carry some modicum of risk? the evidence established and the plaintiff’s injuries.92 The plaintiff
must plead and prove not only that he has been injured and
Absent a definitive standard of care or diligence required of Dr. defendant has been at fault, but also that the defendant’s fault caused
Tuaño under the circumstances, we have no means to determine the injury. A verdict in a malpractice action cannot be based on
whether he was able to comply with the same in his diagnosis and speculation or conjecture. Causation must be proven within a
treatment of Peter. This Court has no yardstick upon which to reasonable medical probability based upon competent expert
evaluate or weigh the attendant facts of this case to be able to state testimony.93
with confidence that the acts complained of, indeed, constituted
negligence and, thus, should be the subject of pecuniary reparation. The causation between the physician’s negligence and the patient’s
injury may only be established by the presentation of proof that
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño Peter’s glaucoma would not have occurred but for Dr. Tuaño’s
should have determined first whether Peter was a "steroid supposed negligent conduct. Once more, petitioners failed in this
responder."87 Yet again, petitioners did not present any convincing regard.
proof that such determination is actually part of the standard
operating procedure which ophthalmologists should unerringly Dr. Tuaño does not deny that the use of Maxitrol involves the risk of
follow prior to prescribing steroid medications. increasing a patient’s IOP. In fact, this was the reason why he made
it a point to palpate Peter’s eyes every time the latter went to see him
In contrast, Dr. Tuaño was able to clearly explain that what is only -- so he could monitor the tension of Peter’s eyes. But to say that
required of ophthalmologists, in cases such as Peter’s, is the conduct said medication conclusively caused Peter’s glaucoma is purely
of standard tests/procedures known as "ocular routine speculative. Peter was diagnosed with open-angle glaucoma. This
examination,"88 composed of five (5) tests/procedures – specifically, kind of glaucoma is characterized by an almost complete absence of
94
gross examination of the eyes and the surrounding area; taking of the symptoms and a chronic, insidious course. In open-angle
visual acuity of the patient; checking the intraocular pressure of the glaucoma, halos around lights and blurring of vision do not occur
patient; checking the motility of the eyes; and using ophthalmoscopy unless there has been a sudden increase in the intraocular vision.95
on the patient’s eye – and he did all those tests/procedures every Visual acuity remains good until late in the course of the disease. 96
time Peter went to see him for follow-up consultation and/or check- Hence, Dr. Tuaño claims that Peter’s glaucoma "can only be long
up. standing x x x because of the large C:D97 ratio," and that "[t]he
steroids provoked the latest glaucoma to be revealed earlier" was a
We cannot but agree with Dr. Tuaño’s assertion that when a doctor blessing in disguise "as [Peter] remained asymptomatic prior to
sees a patient, he cannot determine immediately whether the latter steroid application."
would react adversely to the use of steroids; all the doctor can do is
map out a course of treatment recognized as correct by the standards Who between petitioners and Dr. Tuaño is in a better position to
of the medical profession. It must be remembered that a physician is determine and evaluate the necessity of using Maxitrol to cure
not an insurer of the good result of treatment. The mere fact that the Peter’s EKC vis-à-vis the attendant risks of using the same?
patient does not get well or that a bad result occurs does not in itself
indicate failure to exercise due care. 89 The result is not determinative That Dr. Tuaño has the necessary training and skill to practice his
of the performance [of the physician] and he is not required to be chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaño’s
infallible.90 qualifications – that he has been a physician for close to a decade
and a half at the time Peter first came to see him; that he has had
Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter various medical training; that he has authored numerous papers in
was justified by the fact that the latter was already using the same the field of ophthalmology, here and abroad; that he is a Diplomate
medication when he first came to see Dr. Tuaño on 2 September of the Philippine Board of Ophthalmology; that he occupies various
1988 and had exhibited no previous untoward reaction to that teaching posts (at the time of the filing of the present complaint, he
particular drug. 91 was the Chair of the Department of Ophthalmology and an Associate
Professor at the University of the Philippines-Philippine General
Also, Dr. Tuaño categorically denied petitioners’ claim that he never Hospital and St. Luke’s Medical Center, respectively); and that he
monitored the tension of Peter’s eyes while the latter was on held an assortment of positions in numerous medical organizations
Maxitrol. Dr. Tuaño testified that he palpated Peter’s eyes every like the Philippine Medical Association, Philippine Academy of
time the latter came for a check-up as part of the doctor’s ocular Ophthalmology, Philippine Board of Ophthalmology, Philippine
routine examination, a fact which petitioners failed to rebut. Dr. Society of Ophthalmic Plastic and Reconstructive Surgery,
Tuaño’s regular conduct of examinations and tests to ascertain the Philippine Journal of Ophthalmology, Association of Philippine
state of Peter’s eyes negate the very basis of petitioners’ complaint Ophthalmology Professors, et al.
for damages. As to whether Dr. Tuaño’s actuations conformed to the
standard of care and diligence required in like circumstances, it is It must be remembered that when the qualifications of a physician
presumed to have so conformed in the absence of evidence to the are admitted, as in the instant case, there is an inevitable
contrary. presumption that in proper cases, he takes the necessary precaution
 P a g e | 172

and employs the best of his knowledge and skill in attending to his It seems basic that what constitutes proper medical treatment is a
clients, unless the contrary is sufficiently established. 98 In making medical question that should have been presented to experts. If no
the judgment call of treating Peter’s EKC with Maxitrol, Dr. Tuaño standard is established through expert medical witnesses, then courts
took the necessary precaution by palpating Peter’s eyes to monitor have no standard by which to gauge the basic issue of breach thereof
their IOP every time the latter went for a check-up, and he employed by the physician or surgeon. The RTC and Court of Appeals, and
the best of his knowledge and skill earned from years of training and even this Court, could not be expected to determine on its own what
practice. medical technique should have been utilized for a certain disease or
injury. Absent expert medical opinion, the courts would be
In contrast, without supporting expert medical opinions, petitioners’ dangerously engaging in speculations.
bare assertions of negligence on Dr. Tuaño’s part, which resulted in
Peter’s glaucoma, deserve scant credit. All told, we are hard pressed to find Dr. Tuaño liable for any
medical negligence or malpractice where there is no evidence, in the
Our disposition of the present controversy might have been vastly nature of expert testimony, to establish that in treating Peter, Dr.
different had petitioners presented a medical expert to establish their Tuaño failed to exercise reasonable care, diligence and skill
theory respecting Dr. Tuaño’s so-called negligence. In fact, the generally required in medical practice. Dr. Tuaño’s testimony, that
record of the case reveals that petitioners’ counsel recognized the his treatment of Peter conformed in all respects to standard medical
necessity of presenting such evidence. Petitioners even gave an practice in this locality, stands unrefuted. Consequently, the RTC
undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would and the Court of Appeals correctly held that they had no basis at all
be presented. Alas, no follow-through on said undertaking was to rule that petitioners were deserving of the various damages prayed
made.1avvphi1 for in their Complaint.

The plaintiff in a civil case has the burden of proof as he alleges the WHEREFORE, premises considered, the instant petition is
affirmative of the issue. However, in the course of trial in a civil DENIED for lack of merit. The assailed Decision dated 27
case, once plaintiff makes out a prima facie case in his favor, the September 2006 and Resolution dated 3 July 2007, both of the Court
duty or the burden of evidence shifts to defendant to controvert of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No
plaintiff’s prima facie case; otherwise, a verdict must be returned in cost.
favor of plaintiff.99 The party having the burden of proof must
establish his case by a preponderance of evidence.100 The concept of SO ORDERED.
"preponderance of evidence" refers to evidence which is of greater
weight or more convincing than that which is offered in opposition Richard P. MOGENSEN, Appellee,
to it;101 in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as worthy of belief v.
than that which is offered in opposition thereto.102 Rule 133, Section Wayland K. HICKS and Dwayne Howard,
1 of the Revised Rules of Court provides the guidelines for Individually and as Hicks and Howard, a
determining preponderance of evidence, thus:
partnership; Ciba Pharmaceutical Products, Inc., a
In civil cases, the party having the burden of proof must establish his corporation; Lutheran Hospital, a corporation; Toller
case by a preponderance of evidence. In determining where the Drug Company, a corporation, Appellants.
preponderance or superior weight of evidence on the issues involved No. 50347.
lies the court may consider all the facts and circumstances of the
case, the witnesses’ manner of testifying, their intelligence, their
Supreme Court of Iowa.
means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the
probability or improbability of their testimony, their interest or want September 19, 1961.
of interest, and also their personal credibility so far as the same
Rehearing Denied November 14, 1961.
legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily
with the greater number. *564 Sifford & Wadden, and Harper, Gleysteen & Nelson, Sioux
City, for appellants, Wayland K. Hicks and Dwayne Howard
Herein, the burden of proof was clearly upon petitioners, as plaintiffs individually and as Hicks and Howard a partnership.
in the lower court, to establish their case by a preponderance of
evidence showing a reasonable connection between Dr. Tuaño’s Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for
alleged breach of duty and the damage sustained by Peter’s right appellant, Ciba Pharmaceutical Products, Inc.
eye. This, they did not do. In reality, petitioners’ complaint for
damages is merely anchored on a statement in the literature of Hess, Pendleton & Thompson, Sioux City, for appellee.
Maxitrol identifying the risks of its use, and the purported comment
of Dr. Agulto – another doctor not presented as witness before the PETERSON, Justice.
RTC – concerning the prolonged use of Maxitrol for the treatment of
EKC.
This is an action seeking damages for malpractice. Plaintiff sued not
only his physicians, Drs. Hicks & Howard, but Ciba Pharmaceutical
 P a g e | 173

Products, Inc., who produced the anesthesia under question, Mr. Trizala and the nurse placed 5 c.c.'s of pyribensamine in a
Lutheran Hospital, where the medical services were rendered, and sterilized syringe, and Mr. Trizala applied the anesthesia. He had
Toller Drug Company from whom the anesthesia was purchased. injected from 1 to 1 ½ c.c.'s when plaintiff said he felt a burning
The trial court sustained motion to direct verdict in favor of Toller sharp pain. Mr. Trizala at that time said he noticed the skin around
Drug Company. The jury failed to return a verdict against Lutheran the urethra became white. He ceased further injection and called Dr.
Hospital. A verdict of $8,000 was returned against Drs. Hicks & Hicks, who was standing close by. Dr. Hicks immediately decided
Howard, and Ciba. They have appealed. not to proceed with the examination that morning, and thoroughly
washed out the penis with sterile water. The Doctor testified: "It was
Plaintiff's petition contained two counts. Count I was based on the a good anesthesia. I had no trouble using it with other patients. My
doctrine of res ipsa loquitur. Count II alleged specific negligence. opinion is that plaintiff had an allergic reaction."
The court sustained motion to strike Count II. Plaintiff has not
appealed from the adverse orders of the court, nor from the failure of Plaintiff was removed to a hospital room, and was in the hospital
the jury to return verdict against Lutheran Hospital. four days.

Plaintiff is a young man 28 years of age. He had experienced some Dr. Louis J. Frank, an experienced dermatologist was called. He said
bleeding when he urinated. His family physician, Dr. Vangsness, he saw plaintiff and "observed some swelling in the head of the
arranged with Dr. Hicks, a specialist in urology, to make a glans surrounding the urethea. There was some inflamation there,
cystoscopic examination on the morning of September 27, 1957, at yet it did not appear to be very severe as I saw it. He had no
Lutheran Hospital in Sioux City. difficulty passing urine. * * * we put him on steriod therapy
internally, which was used to help control allergic reactions * * *
Plaintiff was brought into a room known as the cystoscopic room, and wet packs locally." Dr. Frank was asked as to what, in his
and placed on a table near the center of the room. Elfrieda Aljets, an opinion, caused the condition described by plaintiff. His answer was:
experienced and registered nurse, was on duty and made all the "My opinion was that he had an allergic reaction to pyribenzamine
preliminary arrangements as to complete cleanliness and sterility. which was used as a local anesthetic."
Walter M. Trizala was Dr. Hicks anesthetist. He was a technical
sergeant during the war, working in the urology department in a Plaintiff was away from work two weeks. His employer was kind
hospital in Germany, administering topical anesthesia. Since his and paid him his wages for the time off. When he returned he had to
discharge from the army he had worked for Dr. Hicks about ten do light work for three or four weeks. In February of 1958 Dr. Hicks
years. He had administered between four and five thousand made the examination which had been contemplated in September
anesthetic applications. under a general anesthetic. Plaintiff was in the hospital two or three
days. He said thereafter the pain persisted for six or eight weeks. He
The only persons in the room were plaintiff, the nurse, Mr. Trizala said that at the time of trial he still had a little pain, and was still
and Dr. Hicks. While Mr. Trizala was preparing plaintiff for the having some "spraying" action when urinating.
examination Dr. Hicks was talking with Dr. Vangsness, the family
physician, immediately outside the door of the room, a few feet from I. The only question in the case is whether the doctrine of res ipsa
the examination table. loquitur is applicable. If not, the motion by defendants, for judgment
notwithstanding verdict, should be sustained.
The anesthesia which Dr. Hicks was using was known as
pyribenzamine, manufactured by defendant Ciba. After several *565 The essential component parts of res ipsa (as we will denominate the
years of research and after approval of the Federal Food and Drug doctrine) are: a. The instrumentalities causing the injury must have
Administration in October, 1954, the drug was placed on the market been under the exclusive control of defendants, and b. The
in the spring of 1955. happening of the injury must be such that in the ordinary course of
events it would not occur without lack of due care on the part of
Dr. Hicks had used it for several months. Mr. Trizala had defendants.
administered it successfully as a topical anesthesia between 30 and
40 times. Topical administration means it is used on the skin as a II. The doctor was not in full control of the instrumentalities
local anesthesia for the part of the body affected. involved. He controlled the surgical instruments and the medicine,
but he had no control over the condition and reactions of his patient.
Mr. Trizala brought a new bottle of the anesthesia with him, which The allergic reaction of plaintiff in the instant case was an element
Dr. Hicks had purchased a few days earlier at Toller Drug Company. beyond his control.
The seal was broken in the presence of the nurse, and each read the
name of pyribensamine on the label, out loud, as a double check. The doctrine of res ipsa loquitur should be used sparingly. Shinofield
v. *566 Curtis, 245 Iowa 1352, 66 N.W.2d 465, 471, 50 A.L.R. 2d
The nature of the examination was through the penis, in order to 964; 65 C.J.S. Negligence § 220(10).
examine the bladder, kidneys and prostate gland, for the purpose of
finding the basis of the bleeding. A doctor's constant contact are with the frailties, idiosyncrasies,
physical and mental weaknesses, and allergies, of human nature.
To do this without pain or discomfort to the patient, it was necessary They may affect the condition, and yet are beyond his control.
to anesthetize the penis.
 P a g e | 174

It is for this reason that in many medical cases the doctrine of res *567 Iowa 141, 100 N.W.2d 5, 7. Mrs. Bonowski used Revlon "Sun
ipsa has been rejected. Berg v. Willett, 212 Iowa 1109, 232 N.W. Bath, for Normal Skin." It caused blotches and blisters on her face,
821; Gebhardt v. McQuillen, 230 Iowa 181, 297 N.W. 301; Lippard arms and legs, and she was sick for about 5 weeks. Drs. Leiter and
v. Johnson, 215 N.C. 384, 1 S.E.2d 889; Prewitt v. Higgins, 231 Ky. Frank, dermatologists, both testified her injury was due to allergic
678, 22 S.W.2d 115; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d reaction to the sun tan. A witness for Revlon testified 5,304,272
493, 494; 53 A.L.R. 2d 148; Groce v. Myers, 224 N.C. 165, 29 bottles had been sold at the time of trial, without receiving any
S.E.2d 553; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425. complaint. The trial court directed a verdict for defendants, and we
affirmed.
In Gebhardt v. McQuillen, supra, [230 Iowa 181, 297 N.W. 303] the
court refused to apply the doctrine, and said: "In fact the rule of res A somewhat analogous situation arose in Shinofield v. Curtis, supra
ipsa loquitur is seldom applied to cases of malpractice by physicians [245 Iowa 1352, 66 N.W.2d 470]. Plaintiffs' decedent was brought to
or surgeons. * * * The physical condition of the patient, the nature of her hotel in defendant's truck. She said good-night and alighted in
the injury—many things over which the physician has no control— the street. Defendant looked back and did not see her on the curb, so
may enter into the case and affect the result * * * the rule of res ipsastopped his truck and walked back to investigate. He found her in the
loquitur does not apply, because one of its essentials is lacking—the street, so seriously injured that she died in a few moments.
physician or surgeon does not have complete and exclusive control Apparently his truck had passed over her face and body. We held the
over the instrumentality with which he is working." case should go to the jury on the specific negligence count, but not
on the count alleging res ipsa loquitur. As to res ipsa the court said:
Lippard v. Johnson, supra, involved a circumcision operation; a "The res ipsa rule should not be confused with the proposition that
blister arose at the site, and decay set in. The court refused to apply the negligence, like other facts, may be proven by circumstantial
the doctrine of res ipsa, and said: "Therefore, to say that an evidence. * * * It is true the truck which ran over decedent was in
unexpected, unanticipated and unfavorable result of a treatment by a defendant's exclusive control and management. Thus the first of the
physician invokes the application of the doctrine of res ipsa loquitur, two foundation facts on which the res ipsa doctrine rests is present
would be * * * to destroy its recognized usefulness in proper cases. * here. But we think it cannot be said such an occurrence as caused
* * "Practical application of the medical science is necessarily to a decedent's injury does not, in the ordinary course of things, happen if
large degree experimental. Due to the varying conditions of human reasonable care is used by the motorist. As we have indicated,
systems the result of the use of any medicine cannot be predicted evidence which may show negligence in this particular case is not to
with any degree of certainty. What is beneficial to many sometimes be considered in determining the presence of this second foundation
proves to be highly injurious to others." Moreover, a physician is not fact. The question is to be determined from common experience.
a warrantor of cures nor an insurer. Annotations, 59 A.L.R. 468, 78 A.L.R. 731, 141 A.L.R. 1016."

In Hawkins v. McCain, supra [239 N.C. 160, 79 S.E.2d 500], the The clearest, and perhaps most lucid analysis, of this element of the
doctor prescribed a treatment which had an adverse effect, and the doctrine of res ipsa appears in Eaves v. City of Ottumwa, 240 Iowa
patient sued. The court said: "* * * Furthermore, if it was an 956, 38 N.W.2d 761, 769: "In considering the applicability of res
approved and acceptable treatment and the dosage as prescribed ipsa loquitur, the question whether the particular occurrence is such
proper, the mere fact that she had an unfavorable reaction from its as would not happen if reasonable care had been used rests on
use would not make the doctrine of res ipsa loquitur applicable." common experience and not at all on evidence in the particular case
that tends in itself to show such occurrence was in fact the result of
The evidence does not sustain plaintiff's claim that defendants were negligence."
subject to the first requisite as to res ipsa loquitur.
Appellee leans heavily on Frost v. Des Moines Still College, 248
III. The other element in res ipsa is that the occurrence is such as in Iowa 294, 79 N.W.2d 306, to support his contention as to res ipsa.
the ordinary course of events would not happen if reasonable care The case is not applicable. The operation was on Mrs. Frost's back,
had been used. The latin phrase "res ipsa loquitur" means "the thing as the result of an automobile accident. The injury at the hospital, for
speaks for itself." which the verdict was returned, consisted of first, second, and third
degree burns on her stomach, apparently through overusage or
spilling of ether as she was being prepared for the operation. She
We have already held in Division II that res ipsa is not applicable. was unconscious from a general anesthetic, and could not testify as
Under the facts and circumstances of the case at bar and under to what happened. Res ipsa was applicable in her case.
previous decisions of this court pertaining to such element, the
second element of res ipsa is also absent. Orr v. Des Moines Electric
Light Co., 207 Iowa 1149, 222 N.W. 560; Bonowski v. Revlon, Inc. IV. Plaintiff's Count II as to specific negligence was dismissed by
et al., 251 Iowa 141, 100 N.W.2d 5; Shinofield v. Curtis, supra; the court. Plaintiff did not appeal, nor did he present any errors,
Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R. propositions or argument as to the question, in his brief and
2d 1164; Pearson v. Butts, 224 Iowa 376, 276 N.W. 65; Highland argument. R.C.P. 344(4) Third (a), 58 I.C.A., provides: "Errors or
Golf Club v. Sinclair Refining Co., D.C.Iowa, 59 F. Supp. 911, propositions not stated or argued shall be deemed waived."
Judge Graven, see also 38 Am.Jur., Negligence, Section 95.
In view of our decision as to res ipsa, discussion of general rules of
We have recently held, by unanimous action, that a manufacturing malpractice in Iowa are not material nor necessary.
company is not liable for damages where the basis of the injury is an
allergy on the part of the user. Bonowski v. Revlon, Inc. et al., 251 The case is reversed, with instructions to the trial court to sustain
defendants' motions for judgment, notwithstanding verdict.
 P a g e | 175

The printing cost of the record and defendants' two briefs and two Doubt, if any, (or curiosity) as to what happened is removed by the
reply briefs totals $683.20. The record and briefs total 250 pages. uncontradicted evidence of defendants.
Under our rules we have placed a maximum of $1.50 per page for
printing. It can be secured in Iowa for that amount, or less. Only The anesthetic used had been previously, and was subsequently,
$375 shall therefor be taxed to appellee for appellants' printing cost. tested by the manufacturer. It was extensively used in the medical
*568 The balance of $308.20 shall be assumed by appellants. profession. The application to the plaintiff was by approved
procedure in an amount well below recognized and recommended
Reversed. tolerances.

GARFIELD, C. J., and BLISS, HAYS, LARSON, THOMPSON and The plaintiff suffered an allergic reaction. The doctor acted promptly
THORNTON, JJ., concur. to relieve the distress. An allergic reaction will not support a right to
recover damages. Bonowski v. Revlon, Inc., 251 Iowa 141, 100
SNELL, J., concurs specially. N.W.2d 5.

OLIVER, J., takes no part. G.R. No. 191018

SNELL, Justice (concurring specially). CARLOS BORROMEO, Petitioner,

vs.
I concur in the result and agree that the verdict must be set aside. We FAMILY CARE HOSPITAL, INC. and RAMON S.
do not have before us any issue based on allegations of specific
negligence. The sole question is the sufficiency of the evidence to
INSO, M.D., Respondents.
generate a jury question under the doctrine of res ipsa loquitur. The
evidence shows that immediately following a partial administration BRION, J.Carlos Borromeo lost his wife Lillian when she died after
of a topical anesthetic the plaintiff suffered an unfortunate and undergoing a routine appendectomy. The hospital and the attending
unexpected reaction. Nothing further appears to sustain the plaintiff's surgeon submit that Lillian bled to death due to a rare, life-
claim. threatening condition that prevented her blood from clotting
normally. Carlos believes, however, that the hospital and the surgeon
were simply negligent in the care of his late wife.
What is commonly called the second foundation fact necessary to
support the res ipsa loquitur inference is that the happening of the
injury was such as in the ordinary course of events would not have On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No.
occurred without negligence on the part of defendant. 890961 dismissed Carlos' complaint and thus reversed the April 10,
2007 decision of the Regional Trial Court (RTC) in Civil Case No.
2000-603-MK2 which found the respondents liable for medical
This requirement rests on common experience. It is a rule of
negligence.
evidence, not of substantive law. Thompson v. Burke Engineering
Sales Co., Iowa, 106 N.W.2d 351, 355.
The present petition for review on certiorari seeks to reverse the
CA’s January 22, 2010 decision.
The doctrine does not create liability without fault. The doctrine
does not assume that there is necessarily negligence preceding
misfortune. ANTECEDENTS

Orr v. Des Moines Electric Light Co., 207 Iowa 1149, at 1155, 222 The petitioner, Carlos Borromeo, was the husband of the late Lilian
N.W. 560, 562, quotes Corpus Juris as follows: "`* * * the doctrine V. Borromeo (Lilian). Lilian was a patient of the respondent Family
is applicable only where the physical cause of the injury and the Care Hospital, Inc. (Family Care) under the care of respondent Dr.
attendant circumstances indicate such an unusual occurrence that in Ramon Inso (Dr. Inso).
their very nature they carry a strong inherent probability of
negligence and in the light of ordinary experience would presumably On July 13, 1999, the petitioner brought his wife to the Family Care
not have happened if those who had the management or control Hospital because she had been complaining of acute pain at the
exercised proper care. Accordingly the mere occurrence of an lower stomach area and fever for two days. She was admitted at the
unusual or unexplained accident or injury, if not such as necessarily hospital and placed under the care of Dr. Inso.
to involve negligence, does not warrant the application of the
doctrine, * * *' 45 Corpus Juris 1211." Dr. Inso suspected that Lilian might be suffering from acute
appendicitis. However, there was insufficient data to rule out other
The only evidence for plaintiff related to his unfortunate reaction to possible causes and to proceed with an appendectomy. Thus, he
medication. That evidence alone will not "carry a strong inherent ordered Lilian’s confinement for testing and evaluation.
probability of negligence." From that evidence alone it cannot be
said that "in the light of ordinary experience" the reaction would not Over the next 48 hours, Lilian underwent multiple tests such as
have occurred with proper care. complete blood count, urinalysis, stool exam, pelvic ultrasound, and
a pregnancy test. However, the tests were not conclusive enough to
confirm that she had appendicitis.
 P a g e | 176

Meanwhile, Lilian’s condition did not improve. She suffered from Intensive Care Unit (ICU). Unfortunately, Family Care did not have
spiking fever and her abdominal pain worsened. The increasing an ICU because it was only a secondary hospital and was not
tenderness of her stomach, which was previously confined to her required by the Department of Health to have one. Dr. Inso informed
lower right side, had also extended to her lower left side. Lilian the petitioner that Lilian would have to be transferred to another
abruptly developed an acute surgical abdomen. hospital.

On July 15, 1999, Dr. Inso decided to conduct an exploratory At around 3:30 A.M., Dr. Inso personally called the Perpetual Help
laparotomy on Lilian because of the findings on her abdomen and Medical Center to arrange Lilian’s transfer, but the latter had no
his fear that she might have a ruptured appendix. Exploratory available bed in its ICU. Dr. Inso then personally coordinated with
laparotomy is a surgical procedure involving a large incision on the the Muntinlupa Medical Center (MMC) which had an available bed.
abdominal wall that would enable Dr. Inso to examine the abdominal
cavity and identify the cause of Lilian’s symptoms. After explaining At around 4:00 A.M., Lilian was taken to the MMC by ambulance
the situation, Dr. Inso obtained the patient’s consent to the accompanied by the resident doctor on duty and a nurse. Dr. Inso
laparotomy. followed closely behind in his own vehicle.

At around 3:45 P.M., Lilian was brought to the operating room Upon reaching the MMC, a medical team was on hand to resuscitate
where Dr. Inso conducted the surgery. During the operation, Dr. Inso Lilian. A nasogastric tube (NGT) was inserted and IV fluids were
confirmed that Lilian was suffering from acute appendicitis. He immediately administered to her. Dr. Inso asked for a plasma
proceeded to remove her appendix which was already infected and expander. Unfortunately, at around 10:00 A.M., Lilian passed away
congested with pus. despite efforts to resuscitate her.

The operation was successful. Lilian’s appearance and vital signs At the request of the petitioner, Lilian’s body was autopsied at the
improved. At around 7:30 P.M., Lilian was brought back to her Philippine National Police (PNP) Camp Crame Crime Laboratory.
private room from the recovery room. Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the
laboratory, conducted the autopsy. Dr. Reyes summarized his
At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian notable findings as:
was brought back to her room, Dr. Inso was informed that her blood
pressure was low. After assessing her condition, he ordered the x x x I opened up the body and inside the abdominal cavity which
infusion of more intravenous (IV) fluids which somehow raised her you call peritoneal cavity there were 3,000 ml of clot and unclot
blood pressure. blood accumulated thereat. The peritoneal cavity was also free from
any adhesion. Then, I opened up the head and the brain revealed
Despite the late hour, Dr. Inso remained in the hospital to monitor paper white in color and the heart revealed abundant petechial
Lilian’s condition. Subsequently, a nurse informed him that Lilian hemorrhages from the surface and it was normal. The valvular
was becoming restless. Dr. Inso immediately went to Lilian and saw leaflets were soft and pliable, and of course, the normal color is
that she was quite pale. He immediately requested a blood reddish brown as noted. And the coronary arteries which supply the
transfusion. heart were normal and unremarkable. Next, the lungs appears [sic]
hemorrhagic. That was the right lung while the left lung was
Lilian did not respond to the blood transfusion even after receiving collapsed and paled. For the intestines, I noted throughout the entire
two 500 cc-units of blood. Various drugs, such as adrenaline or lengths of the small and large intestine were hemorrhagic areas.
epinephrine, were administered. Noted absent is the appendix at the ileo-colic area but there were
continuous suture repair done thereat. However, there was a 0.5 x
Eventually, an endotracheal tube connected to an oxygen tank was 0.5 cm opening or left unrepaired at that time. There was an opening
inserted into Lilian to ensure her airway was clear and to compensate on that repair site. Meaning it was not repaired. There were also at
for the lack of circulating oxygen in her body from the loss of red that time clot and unclot blood found adherent thereon. The liver and
blood cells. Nevertheless, her condition continued to deteriorate. the rest of the visceral organs were noted exhibit [sic] some degree
of pallor but were otherwise normal. The stomach contains one
glassful about 400 to 500 ml.3
Dr. Inso observed that Lilian was developing petechiae in various
parts of her body. Petechiae are small bruises caused by bleeding
under the skin whose presence indicates a blood-coagulation Dr. Reyes concluded that the cause of Lilian’s death was
problem – a defect in the ability of blood to clot. At this point, Dr. hemorrhage due to bleeding petechial blood vessels: internal
Inso suspected that Lilian had Disseminated Intravascular bleeding. He further concluded that the internal bleeding was caused
Coagulation (DIC), a blood disorder characterized by bleeding in by the 0.5 x 0.5 cm opening in the repair site. He opined that the
many parts of her body caused by the consumption or the loss of the bleeding could have been avoided if the site was repaired with
clotting factors in the blood. However, Dr. Inso did not have the double suturing instead of the single continuous suture repair that he
luxury to conduct further tests because the immediate need was to found.
resuscitate Lilian.
Based on the autopsy, the petitioner filed a complaint for damages
Dr. Inso and the nurses performed cardiopulmonary resuscitation against Family Care and against Dr. Inso for medical negligence.
(CPR) on Lilian. Dr. Inso also informed her family that there may be
a need to re-operate on her, but she would have to be put in an
 P a g e | 177

During the trial, the petitioner presented Dr. Reyes as his expert the blood vessels. The microcirculation is too small to be seen by the
witness. Dr. Reyes testified as to his findings during the autopsy and naked eye; the red cell is even smaller than the tip of a needle.
his opinion that Lilian’s death could have been avoided if Dr. Inso Therefore, the alleged wrong suturing could not have caused the
had repaired the site with double suture rather than a single suture. amount of hemorrhaging that caused Lilian’s death.

However, Dr. Reyes admitted that he had very little experience in Dr. Hernandez further testified that the procedure that Dr. Inso
the field of pathology and his only experience was an on-the-job performed was consistent with the usual surgical procedure and he
training at the V. Luna Hospital where he was only on observer would not have done anything differently.4
status. He further admitted that he had no experience in appendicitis
or appendectomy and that Lilian’s case was his first autopsy The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a
involving a death from appendectomy. rebuttal witness. Dr. Avila, also a lawyer, was presented as an expert
in medical jurisprudence. Dr. Avila testified that between Dr. Reyes
Moreover, Dr. Reyes admitted that he was not intelligently guided who autopsied the patient and Dr. Ramos whose findings were based
during the autopsy because he was not furnished with clinical, on medical records, greater weight should be given to Dr. Reyes’
physical, gross, histopath, and laboratory information that were testimony.
important for an accurate conclusion. Dr. Reyes also admitted that
an appendical stump is initially swollen when sutured and that the On April 10, 2007, the RTC rendered its decision awarding the
stitches may loosen during the healing process when the initial petitioner P88,077.50 as compensatory damages; P50,000.00 as
swelling subside. death indemnity; P3,607,910.30 as loss of earnings; P50,000.00 as
moral damages; P30,000.00 as exemplary damages; P50,000.00 as
In their defense, Dr. Inso and Family Care presented Dr. Inso, and attorney’s fees, and the costs of the suit.
expert witnesses Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio
Hernandez (Dr. Hernandez). The RTC relied on Dr. Avila’s opinion and gave more weight to Dr.
Reyes’ findings regarding the cause of Lilian’s death. It held that Dr.
Dr. Ramos is a practicing pathologist with over 20 years of Inso was negligent in using a single suture on the repair site causing
experience. He is an associate professor at the Department of Lilian’s death by internal hemorrhage. It applied the doctrine of res
Surgery of the Fatima Medical Center, the Manila Central ipsa loquitur, holding that a patient’s death does not ordinarily occur
University, and the Perpetual Help Medical Center. He is a Fellow of during an appendectomy.
the Philippine College of Surgeons, a Diplomate of the Philippine
Board of Surgery, and a Fellow of the Philippine Society of General The respondents elevated the case to the CA and the appeal was
Surgeons. docketed as CA-G.R. CV No. 89096.

Dr. Ramos discredited Dr. Reyes’ theory that the 0.5 x 0.5 cm On January 22, 2010, the CA reversed the RTC’s decision and
opening at the repair site caused Lilian’s internal bleeding. dismissed the complaint. The CA gave greater weight to the
According to Dr. Ramos, appendical vessels measure only 0.1 to testimonies of Dr. Hernandez and Dr. Ramos over the findings of
0.15 cm, a claim that was not refuted by the petitioner. If the 0.5 x Dr. Reyes because the latter was not an expert in pathology,
0.5 cm opening had caused Lilian’s hemorrhage, she would not have appendectomy, nor in surgery. It disregarded Dr. Avila’s opinion
survived for over 16 hours; she would have died immediately, within because the basic premise of his testimony was that the doctor who
20 to 30 minutes, after surgery. conducted the autopsy is a pathologist of equal or of greater
expertise than Dr. Ramos or Dr. Hernandez.
Dr. Ramos submitted that the cause of Lilian’s death was
hemorrhage due to DIC, a blood disorder that leads to the failure of The CA held that there was no causal connection between the
the blood to coagulate. Dr. Ramos considered the abundant petechial alleged omission of Dr. Inso to use a double suture and the cause of
hemorrhage in the myocardic sections and the hemorrhagic right Lilian’s death. It also found that Dr. Inso did, in fact, use a double
lung; the multiple bleeding points indicate that Lilian was afflicted suture ligation with a third silk reinforcement ligation on the repair
with DIC. site which, as Dr. Reyes admitted on cross-examination, loosened up
after the initial swelling of the stump subsided.
Meanwhile, Dr. Hernandez is a general surgeon and a hospital
administrator who had been practicing surgery for twenty years as of The CA denied the applicability of the doctrine of res ipsa loquitur
the date of his testimony. because the element of causation between the instrumentality under
the control and management of Dr. Inso and the injury that caused
Dr. Hernandez testified that Lilian’s death could not be attributed to Lilian’s death was absent; the respondents sufficiently established
the alleged wrong suturing. He submitted that the presence of blood that the cause of Lilian’s death was DIC.
in the lungs, in the stomach, and in the entire length of the bowels
cannot be reconciled with Dr. Reyes’ theory that the hemorrhage On March 18, 2010, the petitioner filed the present petition for
resulted from a single-sutured appendix. review on certiorari.

Dr. Hernandez testified that Lilian had uncontrollable bleeding in the THE PETITION
microcirculation as a result of DIC. In DIC, blood oozes from very
small blood vessels because of a problem in the clotting factors of
 P a g e | 178

The petitioner argues: (1) that Dr. Inso and Family Care were In civil cases, the plaintiff must prove these elements by a
negligent in caring for Lilian before, during, and after her preponderance of evidence.
appendectomy and were responsible for her death; and (2) that the
doctrine of res ipsa loquitur is applicable to this case. A medical professional has the duty to observe the standard of care
and exercise the degree of skill, knowledge, and training ordinarily
In their Comment, the respondents counter: (1) that the issues raised expected of other similarly trained medical professionals acting
by the petitioner are not pure questions of law; (2) that they under the same circumstances.18 A breach of the accepted standard
exercised utmost care and diligence in the treatment of Lilian; (3) of care constitutes negligence or malpractice and renders the
that Dr. Inso did not deviate from the standard of care observed defendant liable for the resulting injury to his patient.19
under similar circumstances by other members of the profession in
good standing; (4) that res ipsa loquitur is not applicable because The standard is based on the norm observed by other reasonably
direct evidence as to the cause of Lilian’s death and the competent members of the profession practicing the same field of
presence/absence of negligence is available; and (5) that doctors are medicine.20 Because medical malpractice cases are often highly
not guarantors of care and cannot be held liable for the death of their technical, expert testimony is usually essential to establish: (1) the
patients when they exercised diligence and did everything to save standard of care that the defendant was bound to observe under the
the patient. circumstances; (2) that the defendant’s conduct fell below the
acceptable standard; and (3) that the defendant’s failure to observe
OUR RULING the industry standard caused injury to his patient.21

The petition involves factual questions. The expert witness must be a similarly trained and experienced
physician. Thus, a pulmonologist is not qualified to testify as to the
Under Section 1 of Rule 45, a petition for review on certiorari shall standard of care required of an anesthesiologist22 and an autopsy
only raise questions of law. The Supreme Court is not a trier of facts expert is not qualified to testify as a specialist in infectious
and it is not our function to analyze and weigh evidence that the diseases.23
lower courts had already passed upon.
The petitioner failed to present an expert witness.
The factual findings of the Court of Appeals are, as a general rule,
conclusive upon this Court. However, jurisprudence has also carved In ruling against the respondents, the RTC relied on the findings of
out recognized exceptions 5 to this rule, to wit: (1) when the findings Dr. Reyes in the light of Dr. Avila’s opinion that the former’s
are grounded entirely on speculation, surmises, or conjectures;6 (2) testimony should be given greater weight than the findings of Dr.
when the inference made is manifestly mistaken, absurd, or Ramos and Dr. Hernandez. On the other hand, the CA did not
impossible;7 (3) when there is grave abuse of discretion;8 (4) when consider Dr. Reyes or Dr. Avila as expert witnesses and disregarded
the judgment is based on a misapprehension of facts;9 (5) when the their testimonies in favor of Dr. Ramos and Dr. Hernandez. The
findings of facts are conflicting;10 (6) when in making its findings basic issue, therefore, is whose testimonies should carry greater
the Court of Appeals went beyond the issues of the case, or its weight?
findings are contrary to the admissions of both the appellant and the
appellee;11 (7) when the findings are contrary to those of the We join and affirm the ruling of the CA.
trial court’s;12 (8) when the findings are conclusions without
citation of specific evidence on which they are based;13 (9) when Other than their conclusion on the culpability of the respondents, the
the facts set forth in the petition as well as in the petitioner’s main CA and the RTC have similar factual findings. The RTC ruled
and reply briefs are not disputed by the respondent;14 (10) when the against the respondents based primarily on the following testimony
findings of fact are premised on the supposed absence of evidence of Dr. Reyes.
and contradicted by the evidence on record;15 and (11) when the
Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify Witness: Well, if I remember right during my residency in my
a different conclusion.16 extensive training, during the operation of the appendix, your
Honor, it should really be sutured twice which we call double.
Considering that the CA’s findings with respect to the cause of
Lilian’s death contradict those of the RTC, this case falls under one Court: What would be the result if there is only single?
of the exceptions. The Court will thus give due course to the petition
to dispel any perception that we denied the petitioner justice. Witness: We cannot guarranty [sic] the bleeding of the sutured blood
vessels, your Honor.
The requisites of establishing medical malpractice
Court: So, the bleeding of the patient was caused by the single
Whoever alleges a fact has the burden of proving it. This is a basic suture?
legal principle that equally applies to civil and criminal cases. In a
medical malpractice case, the plaintiff has the duty of proving its Witness: It is possible.24
elements, namely: (1) a duty of the defendant to his patient; (2) the
defendant’s breach of this duty; (3) injury to the patient; and (4) Dr. Reyes testified that he graduated from the Manila Central
proximate causation between the breach and the injury suffered.17 University (MCU) College of Medicine and passed the medical
 P a g e | 179

board exams in 1994.25 He established his personal practice at his Atty. Castro: And I supposed that you did it for the first take?
house clinic before being accepted as an on-the-job trainee in the
Department of Pathology at the V. Luna Hospital in 1994. In January Witness: Yes, sir.
1996, he joined the PNP Medico-Legal Division and was assigned to
the Crime Laboratory in Camp Crame. He currently heads the Atty. Castro: Are you sure of that?
Southern Police District Medico-Legal division.26 His primary
duties are to examine victims of violent crimes and to conduct
traumatic autopsies to determine the cause of death. Witness: Yes, sir.

After having conducted over a thousand traumatic autopsies, Dr. Atty. Castro: After you took the board examination, did you pursue
Reyes can be considered an expert in traumatic autopsies or any study?
autopsies involving violent deaths. However, his expertise in
traumatic autopsies does not necessarily make him an expert in Witness: During that time, no sir.
clinical and pathological autopsies or in surgery.
Atty. Castro: You also testified during the last hearing that "page 6
Moreover, Dr. Reyes’ cross-examination reveals that he was less of March 5, 2002, answer of the witness: then I was accepted as on
than candid about his qualifications during his initial testimony: the job training at the V. Luna Hospital at the Department of
Pathologist in 1994", could you explain briefly all of this Mr.
Atty. Castro: Dr. Reyes, you mentioned during your direct testimony witness?
last March 5, 2002 that you graduated in March of 1994, is that
correct? Witness: I was given an order that I could attend the training only as
a civilian not as a member of the AFP because at that time they were
Witness: Yes, sir. already in the process of discharging civilian from undergoing
training.
Atty. Castro: You were asked by Atty. Fajardo, the counsel for the
plaintiff, when did you finish your medical works, and you answered Atty. Castro: So in the Department of Pathology, what were you
the following year of your graduation which was in 1994? assigned to?

Witness: Not in 1994, it was in 1984, sir. Witness: Only as an observer status.

Atty. Castro: And after you graduated Mr. Witness, were there Atty. Castro: So you only observed.
further study that you undergo after graduation? [sic]
Witness: Yes, sir.
Witness: It was during my service only at the police organization
that I was given the chance to attend the training, one year course. Atty. Castro: And on the same date during your direct testimony on
March 5, 2002, part of which reads "well if I remember right during
Atty. Castro: Did you call that what you call a post graduate my residency in my extensive training during the operation of the
internship? appendix," what do you mean by that Mr. witness?

Witness: Residency. Witness: I was referring to my internship, sir.

Atty. Castro: Since you call that a post graduate, you were not Atty. Castro: So this is not a residency training?
undergo post graduate? [sic]
Witness: No, sir.
Witness: I did.
Atty. Castro: This is not a specialty training?
Atty. Castro: Where did you undergo a post graduate internship?
Witness: No, sir.
Witness: Before I took the board examination in the year 1984, sir.
Atty. Castro: This was the time the year before you took the board
Atty. Castro: That was where? examination?

Witness: MCU Hospital, sir. Witness: That’s right, sir. Yes, sir.

Atty. Castro: After the post graduate internship that was the time you Atty. Castro: You were not then a license[d] doctor?
took the board examination?
Witness: No, sir.
Witness: Yes, sir.
 P a g e | 180

Atty. Castro: And you also mentioned during the last hearing shown Fajardo objected on the ground that Dr. Reyes was not an expert in
by page 8 of the same transcript of the stenographic notes, dated the field. His testimony was offered to prove that Dr. Inso was
March 5, 2002 and I quote "and that is your residence assignment?", negligent during the surgery without necessarily offering him as an
and you answered "yes, sir." What was the meaning of your answer? expert witness.
What do you mean when you say yes, sir?
Atty. Fajardo: x x x The purpose of this witness is to establish that
xxxx there was negligence on the surgical operation of the appendix or in
the conduct of the appendectomy by the defendant doctor on the
Witness: Okay, I stayed at the barracks of the Southern Police deceased Lilian Villaran Borromeo.30
District Fort Bonifacio.
Dr. Reyes is not an expert witness who could prove Dr. Inso’s
Atty. Castro: So this is not referring to any kind of training? alleged negligence. His testimony could not have established the
standard of care that Dr. Inso was expected to observe nor assessed
Witness: No, sir. Dr. Inso’s failure to observe this standard. His testimony cannot be
relied upon to determine if Dr. Inso committed errors during the
operation, the severity of these errors, their impact on Lilian’s
Atty. Castro: This is not in anyway related to appendicitis? probability of survival, and the existence of other diseases/conditions
that might or might not have caused or contributed to Lilian’s death.
Witness: No, sir.27
The testimony of Dr. Avila also has no probative value in
Atty. Reyes appears to have inflated his qualifications during his determining whether Dr. Inso was at fault. Dr. Avila testified in his
direct testimony. First, his "extensive training during [his] capacity as an expert in medical jurisprudence, not as an expert in
residency" was neither extensive actual training, nor part of medical medicine, surgery, or pathology. His testimony fails to shed any light
residency. His assignment to the V. Luna Hospital was not as an on- on the actual cause of Lilian’s death.
the-job trainee but as a mere observer. This assignment was also
before he was actually licensed as a doctor. Dr. Reyes also loosely On the other hand, the respondents presented testimonies from Dr.
used the terms "residence" and "residency" – terms that carry a Inso himself and from two expert witnesses in pathology and
technical meaning with respect to medical practice –during his initial surgery.
testimony28 to refer to (1) his physical place of dwelling and (2) his
internship before taking the medical board exams. This misled the
trial court into believing that he was more qualified to give his Dr. Ramos graduated from the Far Eastern University, Nicanor
opinion on the matter than he actually was. Reyes Medical Foundation, in 1975. He took up his post-graduate
internship at the Quezon Memorial Hospital in Lucena City, before
taking the board exams. After obtaining his professional license, he
Perhaps nothing is more telling about Dr. Reyes’ lack of expertise in underwent residency training in pathology at the Jose R. Reyes
the subject matter than the petitioner’s counsel’s own admission Memorial Center from 1977 to 1980. He passed the examination in
during Dr. Reyes’ cross examination. Anatomic, Clinical, and Physical Pathology in 1980 and was
inducted in 1981. He also took the examination in anatomic
Atty. Castro: How long were you assigned to observe with the pathology in 1981 and was inducted in 1982.31
Department of Pathology?
At the time of his testimony, Dr. Ramos was an associate professor
Witness: Only 6 months, sir. in pathology at the Perpetual Help Medical School in Biñan, Laguna,
and at the De La Salle University in Dasmariñas, Cavite. He was the
Atty. Castro: During your studies in the medical school, Mr. head of the Batangas General Hospital Teaching and Training
Witness, do you recall attending or having participated or [sic] what Hospital where he also headed the Pathology Department. He also
you call motivity mortality complex? headed the Perpetual Help General Hospital Pathology
department.32
Atty. Fajardo: Your honor, what is the materiality?
Meanwhile, Dr. Hernandez at that time was a General Surgeon with
Atty. Castro: That is according to his background, your honor. This 27 years of experience as a General Practitioner and 20 years of
is a procedure which could more or less measure his knowledge in experience as a General Surgeon.1âwphi1 He obtained his medical
autopsy proceedings when he was in medical school and compared degree from the University of Santo Tomas before undergoing five
to what he is actually doing now. years of residency training as a surgeon at the Veterans Memorial
Center hospital. He was certified as a surgeon in 1985. He also holds
a master’s degree in Hospital Administration from the Ateneo de
Atty. Fajardo: The witness is not an expert witness, your honor.
Manila University.33
Atty. Castro: He is being presented as an expert witness, your
He was a practicing surgeon at the: St. Luke’s Medical Center,
honor.29
Fatima Medical Center, Unciano Medical Center in Antipolo,
Manila East Medical Center of Taytay, and Perpetual Help Medical
When Atty. Castro attempted to probe Dr. Reyes about his Center in Biñan.34 He was also an associate professor at the
knowledge on the subject of medical or pathological autopsies, Dr.
 P a g e | 181

Department of Surgery at the Fatima Medical Center, the Manila apparent to a layman.42 These instances require expert opinion to
Central University, and the Perpetual Help Medical Center. He also establish the culpability of the defendant doctor. It is also not
chaired the Department of Surgery at the Fatima Medical Center.35 applicable to cases where the actual cause of the injury had been
identified or established.43
Dr. Hernandez is a Fellow of the American College of Surgeons, the
Philippine College of Surgeons, and the Philippine Society of While this Court sympathizes with the petitioner’s loss, the
General Surgeons. He is a Diplomate of the Philippine Board of petitioner failed to present sufficient convincing evidence to
Surgery and a member of the Philippine Medical Association and the establish: (1) the standard of care expected of the respondent and (2)
Antipolo City Medical Society.36 the fact that Dr. Inso fell short of this expected standard. Considering
further that the respondents established that the cause of Lilian’s
Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual uncontrollable bleeding (and, ultimately, her death) was a medical
surgical procedure.37 Both experts agreed that Lilian could not have disorder – Disseminated Intravascular Coagulation – we find no
died from bleeding of the appendical vessel. They identified Lilian’s reversible errors in the CA’s dismissal of the complaint on appeal.
cause of death as massive blood loss resulting from DIC.
WHEREFORE, we hereby DENY the petition for lack of merit. No
To our mind, the testimonies of expert witnesses Dr. Hernandez and costs.
Dr. Ramos carry far greater weight than that of Dr. Reyes. The
petitioner’s failure to present expert witnesses resulted in his failure SO ORDERED.
to prove the respondents’ negligence. The preponderance of
evidence clearly tilts in favor of the respondents. G.R. No. 130547               October 3, 2000
Res ipsa loquitur is not applicable when the failure to observe
due care is not immediately apparent to the layman. LEAH ALESNA REYES, ROSE NAHDJA,
JOHNNY, and minors LLOYD and KRISTINE, all
The petitioner cannot invoke the doctrine of res ipsa loquitur to shift surnamed REYES, represented by their mother,
the burden of evidence onto the respondent. Res ipsa loquitur, LEAH ALESNA REYES, petitioners,
literally, "the thing speaks for itself;" is a rule of evidence that vs.
presumes negligence from the very nature of the accident itself using SISTERS OF MERCY HOSPITAL, SISTER ROSE
common human knowledge or experience.
PALACIO, DR. MARVIE BLANES, and DR.
The application of this rule requires: (1) that the accident was of a
MARLYN RICO, respondents.
kind which does not ordinarily occur unless someone is negligent;
(2) that the instrumentality or agency which caused the injury was MENDOZA, J.:This is a petition for review of the decision1 of the
under the exclusive control of the person charged with negligence; Court of Appeals in CA-G.R. CV No. 36551 affirming the decision
and (3) that the injury suffered must not have been due to any of the Regional Trial Court, Branch IX, Cebu City which dismissed
voluntary action or contribution from the injured person.38 The a complaint for damages filed by petitioners against respondents.
concurrence of these elements creates a presumption of negligence
that, if unrebutted, overcomes the plaintiff’s burden of proof. The facts are as follows:

This doctrine is used in conjunction with the doctrine of common Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The
knowledge. We have applied this doctrine in the following cases other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine,
involving medical practitioners: all surnamed Reyes, were their children. Five days before his death
on January 8, 1987, Jorge had been suffering from a recurring fever
a. Where a patient who was scheduled for a with chills. After he failed to get relief from some home medication
cholecystectomy (removal of gall stones) but was otherwise he was taking, which consisted of analgesic, antipyretic, and
healthy suffered irreparable brain damage after being antibiotics, he decided to see the doctor.
administered anesthesia prior to the operation.39
On January 8, 1987, he was taken to the Mercy Community Clinic
b. Where after giving birth, a woman woke up with a by his wife. He was attended to by respondent Dr. Marlyn Rico,
gaping burn wound close to her left armpit;40 resident physician and admitting physician on duty, who gave Jorge
a physical examination and took his medical history. She noted that
at the time of his admission, Jorge was conscious, ambulatory,
c. The removal of the wrong body part during the operation;
oriented, coherent, and with respiratory distress.2 Typhoid fever was
and
then prevalent in the locality, as the clinic had been getting from 15
to 20 cases of typhoid per month.3 Suspecting that Jorge could be
d. Where an operating surgeon left a foreign object (i.e., suffering from this disease, Dr. Rico ordered a Widal Test, a
rubber gloves) inside the body of the patient.41 standard test for typhoid fever, to be performed on Jorge. Blood
count, routine urinalysis, stool examination, and malarial smear were
The rule is not applicable in cases such as the present one where the also made.4 After about an hour, the medical technician submitted
defendant’s alleged failure to observe due care is not immediately the results of the test from which Dr. Rico concluded that Jorge was
 P a g e | 182

positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief
Rico indorsed Jorge to respondent Dr. Marvie Blanes. Pathologist at the Northern Mindanao Training Hospital, Cagayan de
Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy
Dr. Marvie Blanes attended to Jorge at around six in the evening. on Jorge Reyes to determine the cause of his death. However, he did
She also took Jorge’s history and gave him a physical examination. not open the skull to examine the brain. His findings9 showed that
Like Dr. Rico, her impression was that Jorge had typhoid fever. the gastro-intestinal tract was normal and without any ulceration or
Antibiotics being the accepted treatment for typhoid fever, she enlargement of the nodules. Dr. Vacalares testified that Jorge did not
ordered that a compatibility test with the antibiotic chloromycetin be die of typhoid fever. He also stated that he had not seen a patient die
done on Jorge. Said test was administered by nurse Josephine of typhoid fever within five days from the onset of the disease.
Pagente who also gave the patient a dose of triglobe. As she did not
observe any adverse reaction by the patient to chloromycetin, Dr. For their part, respondents offered the testimonies of Dr. Peter
Blanes ordered the first five hundred milligrams of said antibiotic toGotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in
be administered on Jorge at around 9:00 p.m. A second dose was internal medicine whose expertise is microbiology and infectious
administered on Jorge about three hours later just before midnight. diseases. He is also a consultant at the Cebu City Medical Center and
an associate professor of medicine at the South Western University
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as College of Medicine in Cebu City. He had treated over a thousand
Jorge’s temperature rose to 41°C. The patient also experienced chills cases of typhoid patients. According to Dr. Gotiong, the patient’s
and exhibited respiratory distress, nausea, vomiting, and history and positive Widal Test results ratio of 1:320 would make
convulsions. Dr. Blanes put him under oxygen, used a suction him suspect that the patient had typhoid fever. As to Dr. Vacalares’
machine, and administered hydrocortisone, temporarily easing the observation regarding the absence of ulceration in Jorge’s gastro-
patient’s convulsions. When he regained consciousness, the patient intestinal tract, Dr. Gotiong said that such hyperplasia in the
was asked by Dr. Blanes whether he had a previous heart ailment or intestines of a typhoid victim may be microscopic. He noted that
had suffered from chest pains in the past. Jorge replied he did not.5 since the toxic effect of typhoid fever may lead to meningitis, Dr.
After about 15 minutes, however, Jorge again started to vomit, Vacalares’ autopsy should have included an examination of the
showed restlessness, and his convulsions returned. Dr. Blanes re- brain.10
applied the emergency measures taken before and, in addition,
valium was administered. Jorge, however, did not respond to the The other doctor presented was Dr. Ibarra Panopio, a member of the
treatment and slipped into cyanosis, a bluish or purplish American Board of Pathology, examiner of the Philippine Board of
discoloration of the skin or mucous membrane due to deficient Pathology from 1978 to 1991, fellow of the Philippine Society of
oxygenation of the blood. At around 2:00 a.m., Jorge died. He was Pathologist, associate professor of the Cebu Institute of Medicine,
forty years old. The cause of his death was "Ventricular Arrythemia and chief pathologist of the Andres Soriano Jr. Memorial Hospital in
Secondary to Hyperpyrexia and typhoid fever." Toledo City. Dr. Panopio stated that although he was partial to the
use of the culture test for its greater reliability in the diagnosis of
On June 3, 1987, petitioners filed before the Regional Trial Court of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong,
Cebu City a complaint6 for damages against respondents Sisters of he agreed that the 1:320 ratio in Jorge’s case was already the
Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, maximum by which a conclusion of typhoid fever may be made. No
and nurse Josephine Pagente. On September 24, 1987, petitioners additional information may be deduced from a higher dilution.11 He
amended their complaint to implead respondent Mercy Community said that Dr. Vacalares’ autopsy on Jorge was incomplete and thus
Clinic as additional defendant and to drop the name of Josephine inconclusive.
Pagente as defendant since she was no longer connected with
respondent hospital. Their principal contention was that Jorge did On September 12, 1991, the trial court rendered its decision
not die of typhoid fever.7 Instead, his death was due to the wrongful absolving respondents from the charges of negligence and
administration of chloromycetin. They contended that had dismissing petitioners’ action for damages. The trial court likewise
respondent doctors exercised due care and diligence, they would not dismissed respondents’ counterclaim, holding that, in seeking
have recommended and rushed the performance of the Widal Test, damages from respondents, petitioners were impelled by the honest
hastily concluded that Jorge was suffering from typhoid fever, and belief that Jorge’s death was due to the latter’s negligence.
administered chloromycetin without first conducting sufficient tests
on the patient’s compatibility with said drug. They charged Petitioners brought the matter to the Court of Appeals. On July 31,
respondent clinic and its directress, Sister Rose Palacio, with 1997, the Court of Appeals affirmed the decision of the trial court.
negligence in failing to provide adequate facilities and in hiring
negligent doctors and nurses.8 Hence this petition.

Respondents denied the charges. During the pre-trial conference, the Petitioners raise the following assignment of errors:
parties agreed to limit the issues on the following: (1) whether the
death of Jorge Reyes was due to or caused by the negligence,
carelessness, imprudence, and lack of skill or foresight on the part of I. THE HONORABLE COURT OF APPEALS
defendants; (2) whether respondent Mercy Community Clinic was COMMITTED A REVERSIBLE ERROR WHEN IT
negligent in the hiring of its employees; and (3) whether either party RULED THAT THE DOCTRINE OF RES IPSA
was entitled to damages. The case was then heard by the trial court LOQUITUR IS NOT APPLICABLE IN THE INSTANT
during which, in addition to the testimonies of the parties, the CASE.
testimonies of doctors as expert witnesses were presented.
 P a g e | 183

II. THE HONORABLE COURT OF APPEALS the res ipsa loquitur is applicable, the court is permitted to find a
COMMITTED REVERSIBLE ERROR WHEN IT MADE physician negligent upon proper proof of injury to the patient,
AN UNFOUNDED ASSUMPTION THAT THE LEVEL without the aid of expert testimony, where the court from its fund of
OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY. common knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a resulting
III. THE HONORABLE COURT OF APPEALS injury would not have occurred to the patient if due care had been
GRAVELY ERRED WHEN IT RULED FOR A LESSER exercised, an inference of negligence may be drawn giving rise to an
STANDARD OF CARE AND DEGREE OF DILIGENCE application of the doctrine of res ipsa loquitur without medical
FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT evidence, which is ordinarily required to show not only what
APPRECIATE[D] NO DOCTOR’S NEGLIGENCE IN occurred but how and why it occurred. When the doctrine is
THE TREATMENT OF JORGE REYES. appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained
Petitioner’s action is for medical malpractice. This is a particular while under the custody and management of the defendant without
form of negligence which consists in the failure of a physician or need to produce expert medical testimony to establish the standard
surgeon to apply to his practice of medicine that degree of care and of care. Resort to res ipsa loquitor is allowed because there is no
skill which is ordinarily employed by the profession generally, under other way, under usual and ordinary conditions, by which the patient
similar conditions, and in like surrounding circumstances.12 In order can obtain redress for injury suffered by him.
to successfully pursue such a claim, a patient must prove that the
physician or surgeon either failed to do something which a Thus, courts of other jurisdictions have applied the doctrine in the
reasonably prudent physician or surgeon would have done, or that he following situations: leaving of a foreign object in the body of the
or she did something that a reasonably prudent physician or surgeon patient after an operation, injuries sustained on a healthy part of the
would not have done, and that the failure or action caused injury to body which was not under, or in the area, of treatment, removal of
the patient.13 There are thus four elements involved in medical the wrong part of the body when another part was intended,
negligence cases, namely: duty, breach, injury, and proximate knocking out a tooth while a patient’s jaw was under anesthetic for
causation. the removal of his tonsils, and loss of an eye while the patient was
under the influence of anesthetic, during or following an operation
In the present case, there is no doubt that a physician-patient for appendicitis, among others.17
relationship existed between respondent doctors and Jorge Reyes.
Respondents were thus duty-bound to use at least the same level of Petitioners asserted in the Court of Appeals that the doctrine of res
care that any reasonably competent doctor would use to treat a ipsa loquitur applies to the present case because Jorge Reyes was
condition under the same circumstances. It is breach of this duty merely experiencing fever and chills for five days and was fully
which constitutes actionable malpractice.14 As to this aspect of conscious, coherent, and ambulant when he went to the hospital.
medical malpractice, the determination of the reasonable level of Yet, he died after only ten hours from the time of his admission.
care and the breach thereof, expert testimony is essential. Inasmuch
as the causes of the injuries involved in malpractice actions are This contention was rejected by the appellate court.
determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support the Petitioners now contend that all requisites for the application of res
conclusion as to causation.15 ipsa loquitur were present, namely: (1) the accident was of a kind
which does not ordinarily occur unless someone is negligent; (2) the
Res Ipsa Loquitur instrumentality or agency which caused the injury was under the
exclusive control of the person in charge; and (3) the injury suffered
There is a case when expert testimony may be dispensed with, and must not have been due to any voluntary action or contribution of
that is under the doctrine of res ipsa loquitur. As held in Ramos v. the person injured.18
Court of Appeals:16
The contention is without merit. We agree with the ruling of the
Although generally, expert medical testimony is relied upon in Court of Appeals. In the Ramos case, the question was whether a
malpractice suits to prove that a physician has done a negligent act surgeon, an anesthesiologist, and a hospital should be made liable
or that he has deviated from the standard medical procedure, when for the comatose condition of a patient scheduled for
the doctrine of res ipsa loquitor is availed by the plaintiff, the need cholecystectomy.19 In that case, the patient was given anesthesia
for expert medical testimony is dispensed with because the injury prior to her operation. Noting that the patient was neurologically
itself provides the proof of negligence. The reason is that the general sound at the time of her operation, the Court applied the doctrine of
rule on the necessity of expert testimony applies only to such matters res ipsa loquitur as mental brain damage does not normally occur in
clearly within the domain of medical science, and not to matters that a gallblader operation in the absence of negligence of the
are within the common knowledge of mankind which may be anesthesiologist. Taking judicial notice that anesthesia procedures
testified to by anyone familiar with the facts. Ordinarily, only had become so common that even an ordinary person could tell if it
physicians and surgeons of skill and experience are competent to was administered properly, we allowed the testimony of a witness
testify as to whether a patient has been treated or operated upon with who was not an expert. In this case, while it is true that the patient
a reasonable degree of skill and care. However, testimony as to the died just a few hours after professional medical assistance was
statements and acts of physicians and surgeons, external rendered, there is really nothing unusual or extraordinary about his
appearances, and manifest conditions which are observable by any death. Prior to his admission, the patient already had recurring fevers
one may be given by non-expert witnesses. Hence, in cases where and chills for five days unrelieved by the analgesic, antipyretic, and
 P a g e | 184

antibiotics given him by his wife. This shows that he had been Q Why? Have you not testified earlier that you have never seen a
suffering from a serious illness and professional medical help came patient who died of typhoid fever?
too late for him.
A In autopsy. But, that was when I was a resident physician yet.
Respondents alleged failure to observe due care was not immediately
apparent to a layman so as to justify application of res ipsa loquitur. Q But you have not performed an autopsy of a patient who died of
The question required expert opinion on the alleged breach by typhoid fever?
respondents of the standard of care required by the circumstances.
Furthermore, on the issue of the correctness of her diagnosis, no A I have not seen one.
presumption of negligence can be applied to Dr. Marlyn Rico.As
held in Ramos:
Q And you testified that you have never seen a patient who died of
typhoid fever within five days?
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to A I have not seen one.
situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the Q How many typhoid fever cases had you seen while you were in
consequences of professional care were not as such as would the general practice of medicine?
ordinarily have followed if due care had been exercised. A
distinction must be made between the failure to secure results, and A In our case we had no widal test that time so we cannot consider
the occurrence of something more unusual and not ordinarily found that the typhoid fever is like this and like that. And the widal test
if the service or treatment rendered followed the usual procedure of does not specify the time of the typhoid fever.
those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against Q The question is: how many typhoid fever cases had you seen in
a physician or a surgeon which involves the merits of a diagnosis or your general practice regardless of the cases now you practice?
of a scientific treatment. The physician or surgeon is not required at
his peril to explain why any particular diagnosis was not correct, or
A I had only seen three cases.
why any particular scientific treatment did not produce the desired
result.20
Q And that was way back in 1964?
Specific Acts of Negligence
A Way back after my training in UP.
We turn to the question whether petitioners have established specific
acts of negligence allegedly committed by respondent doctors. Q Clinically?

Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously A Way back before my training.
relied upon the Widal test, diagnosed Jorge’s illness as typhoid
fever, and immediately prescribed the administration of the He is thus not qualified to prove that Dr. Marlyn Rico erred in her
antibiotic chloromycetin;21 and (2) Dr. Marvie Blanes erred in diagnosis. Both lower courts were therefore correct in discarding his
ordering the administration of the second dose of 500 milligrams of testimony, which is really inadmissible.
chloromycetin barely three hours after the first was given.22
Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief In Ramos, the defendants presented the testimony of a pulmonologist
Pathologist of the Northern Mindanao Training Hospital, Cagayan to prove that brain injury was due to oxygen deprivation after the
de Oro City, who performed an autopsy on the body of Jorge Reyes. patient had bronchospasms24 triggered by her allergic response to a
Dr. Vacalares testified that, based on his findings during the autopsy, drug,25 and not due to faulty intubation by the anesthesiologist. As
Jorge Reyes did not die of typhoid fever but of shock undetermined, the issue was whether the intubation was properly performed by an
which could be due to allergic reaction or chloromycetin overdose. anesthesiologist, we rejected the opinion of the pulmonologist on the
We are not persuaded. ground that he was not: (1) an anesthesiologist who could enlighten
the court about anesthesia practice, procedure, and their
First. While petitioners presented Dr. Apolinar Vacalares as an complications; nor (2) an allergologist who could properly advance
expert witness, we do not find him to be so as he is not a specialist expert opinion on allergic mediated processes; nor (3) a
on infectious diseases like typhoid fever. Furthermore, although he pharmacologist who could explain the pharmacologic and toxic
may have had extensive experience in performing autopsies, he effects of the drug allegedly responsible for the bronchospasms.
admitted that he had yet to do one on the body of a typhoid victim at
the time he conducted the postmortem on Jorge Reyes. It is also Second. On the other hand, the two doctors presented by
plain from his testimony that he has treated only about three cases of respondents clearly were experts on the subject. They vouched for
typhoid fever. Thus, he testified that:23 the correctness of Dr. Marlyn Rico’s diagnosis. Dr. Peter Gotiong, a
diplomate whose specialization is infectious diseases and
ATTY. PASCUAL: microbiology and an associate professor at the Southwestern
University College of Medicine and the Gullas College of Medicine,
testified that he has already treated over a thousand cases of typhoid
 P a g e | 185

fever.26 According to him, when a case of typhoid fever is A No, the finding would be more on the meninges or covering of the
suspected, the Widal test is normally used,27 and if the 1:320 results brain.
of the Widal test on Jorge Reyes had been presented to him along
with the patient’s history, his impression would also be that the Q And in order to see those changes would it require opening the
patient was suffering from typhoid fever.28 As to the treatment of skull?
the disease, he stated that chloromycetin was the drug of choice.29
He also explained that despite the measures taken by respondent A Yes.
doctors and the intravenous administration of two doses of
chloromycetin, complications of the disease could not be discounted.
His testimony is as follows:30 As regards Dr. Vacalares’ finding during the autopsy that the
deceased’s gastro-intestinal tract was normal, Dr. Rico explained
that, while hyperplasia31 in the payer’s patches or layers of the
ATTY. PASCUAL: small intestines is present in typhoid fever, the same may not always
be grossly visible and a microscope was needed to see the texture of
Q If with that count with the test of positive for 1 is to 320, what the cells.32
treatment if any would be given?
Respondents also presented the testimony of Dr. Ibarra T. Panopio
A If those are the findings that would be presented to me, the first who is a member of the Philippine and American Board of
thing I would consider would be typhoid fever. Pathology, an examiner of the Philippine Board of Pathology, and
chief pathologist at the MetroCebu Community Hospital, Perpetual
Q And presently what are the treatments commonly used? Succor Hospital, and the Andres Soriano Jr. Memorial Medical
Center. He stated that, as a clinical pathologist, he recognized that
A Drug of choice of chloramphenical. the Widal test is used for typhoid patients, although he did not
encourage its use because a single test would only give a
Q Doctor, if given the same patient and after you have administered presumption necessitating that the test be repeated, becoming more
chloramphenical about 3 1/2 hours later, the patient associated with conclusive at the second and third weeks of the disease.33 He
chills, temperature - 41oC, what could possibly come to your mind? corroborated Dr. Gotiong’s testimony that the danger with typhoid
fever is really the possible complications which could develop like
perforation, hemorrhage, as well as liver and cerebral
A Well, when it is change in the clinical finding, you have to think complications.34 As regards the 1:320 results of the Widal test on
of complication. Jorge Reyes, Dr. Panopio stated that no additional information could
be obtained from a higher ratio.35 He also agreed with Dr. Gotiong
Q And what will you consider on the complication of typhoid? that hyperplasia in the payer’s patches may be microscopic.36

A One must first understand that typhoid fever is toximia. The Indeed, the standard contemplated is not what is actually the average
problem is complications are caused by toxins produced by the merit among all known practitioners from the best to the worst and
bacteria . . . whether you have suffered complications to think of -- from the most to the least experienced, but the reasonable average
heart toxic myocardities; then you can consider a toxic meningitis merit among the ordinarily good physicians.37 Here, Dr. Marlyn
and other complications and perforations and bleeding in the ilium. Rico did not depart from the reasonable standard recommended by
the experts as she in fact observed the due care required under the
Q Even that 40-year old married patient who received medication of circumstances. Though the Widal test is not conclusive, it remains a
chloromycetin of 500 milligrams intravenous, after the skin test, and standard diagnostic test for typhoid fever and, in the present case,
received a second dose of chloromycetin of 500 miligrams, 3 hours greater accuracy through repeated testing was rendered unobtainable
later, the patient developed chills . . . rise in temperature to 41oC, and by the early death of the patient. The results of the Widal test and the
then about 40 minutes later the temperature rose to 100oF, cardiac patient’s history of fever with chills for five days, taken with the fact
rate of 150 per minute who appeared to be coherent, restless, that typhoid fever was then prevalent as indicated by the fact that the
nauseating, with seizures: what significance could you attach to clinic had been getting about 15 to 20 typhoid cases a month, were
these clinical changes? sufficient to give upon any doctor of reasonable skill the impression
that Jorge Reyes had typhoid fever.
A I would then think of toxemia, which was toxic meningitis and
probably a toxic meningitis because of the high cardiac rate. Dr. Rico was also justified in recommending the administration of
the drug chloromycetin, the drug of choice for typhoid fever. The
Q Even if the same patient who, after having given intramuscular burden of proving that Jorge Reyes was suffering from any other
valium, became conscious and coherent about 20 minutes later, have illness rested with the petitioners. As they failed to present expert
seizure and cyanosis and rolling of eyeballs and vomitting . . . and opinion on this, preponderant evidence to support their contention is
death: what significance would you attach to this development? clearly absent.

A We are probably dealing with typhoid to meningitis. Third. Petitioners contend that respondent Dr. Marvie Blanes, who
took over from Dr. Rico, was negligent in ordering the intravenous
administration of two doses of 500 milligrams of chloromycetin at
Q In such case, Doctor, what finding if any could you expect on the
an interval of less than three hours. Petitioners claim that Jorge
post-mortem examination?
 P a g e | 186

Reyes died of anaphylactic shock38 or possibly from overdose as the The standard of extraordinary diligence is peculiar to common
second dose should have been administered five to six hours after carriers. The Civil Code provides:
the first, per instruction of Dr. Marlyn Rico. As held by the Court of
Appeals, however: Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
That chloromycetin was likewise a proper prescription is best diligence in the vigilance over the goods and for the safety of the
established by medical authority. Wilson, et. al., in Harrison’s passengers transported by them, according to the circumstances of
Principle of Internal Medicine, 12th ed. write that chlorampenicol each case. . . .
(which is the generic of chloromycetin) is the drug of choice for
typhoid fever and that no drug has yet proven better in promoting a The practice of medicine is a profession engaged in only by qualified
favorable clinical response. "Chlorampenicol (Chloromycetin) is individuals.1âwphi1 It is a right earned through years of education,
specifically indicated for bacterial meningitis, typhoid fever, training, and by first obtaining a license from the state through
rickettsial infections, bacteriodes infections, etc." (PIMS Annual, professional board examinations. Such license may, at any time and
1994, p. 211) The dosage likewise including the first administration for cause, be revoked by the government. In addition to state
of five hundred milligrams (500 mg.) at around nine o’clock in the regulation, the conduct of doctors is also strictly governed by the
evening and the second dose at around 11:30 the same night was Hippocratic Oath, an ancient code of discipline and ethical rules
still within medically acceptable limits, since the recommended dose which doctors have imposed upon themselves in recognition and
of chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric acceptance of their great responsibility to society. Given these
Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on safeguards, there is no need to expressly require of doctors the
Therapeutics and Toxicology, 1996). The intravenous route is observance of "extraordinary" diligence. As it is now, the practice of
likewise correct. (Mansser, O’Nick, Pharmacology and medicine is already conditioned upon the highest degree of
Therapeutics) Even if the test was not administered by the physician- diligence. And, as we have already noted, the standard contemplated
on-duty, the evidence introduced that it was Dra. Blanes who for doctors is simply the reasonable average merit among ordinarily
interpreted the results remain uncontroverted. (Decision, pp. 16-17) good physicians. That is reasonable diligence for doctors or, as the
Once more, this Court rejects any claim of professional negligence Court of Appeals called it, the reasonable "skill and competence . . .
in this regard. that a physician in the same or similar locality . . . should apply."

.... WHEREFORE, the instant petition is DENIED and the decision of

the Court of Appeals is AFFIRMED.
As regards anaphylactic shock, the usual way of guarding against it
prior to the administration of a drug, is the skin test of which, SO ORDERED.
however, it has been observed: "Skin testing with haptenic drugs is
generally not reliable. Certain drugs cause nonspecific histamine
release, producing a weal-and-flare reaction in normal individuals. G.R. No. 171127               March 11, 2015
Immunologic activation of mast cells requires a polyvalent allergen,
so a negative skin test to a univalent haptenic drug does not rule out NOEL CASUMPANG, RUBY SANGA-MIRANDA
anaphylactic sensitivity to that drug." (Terr, "Anaphylaxis and and SAN JUAN DEDIOS HOSPITAL, Petitioners,
Urticaria" in Basic and Clinical Immunology, p. 349) What all this vs.
means legally is that even if the deceased suffered from an
anaphylactic shock, this, of itself, would not yet establish the NELSON CORTEJO, Respondent. (repeated case,
negligence of the appellee-physicians for all that the law requires of please go back to pg. 3 of syllabus!!!)
them is that they perform the standard tests and perform standard
procedures. The law cannot require them to predict every possible
reaction to all drugs administered. The onus probandi was on the
appellants to establish, before the trial court, that the appellee- G.R. No. 165279               June 7, 2011
physicians ignored standard medical procedure, prescribed and
administered medication with recklessness and exhibited an absence
of the competence and skills expected of general practitioners DR. RUBI LI, Petitioner,
similarly situated.39 vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs
of deceased Angelica Soliman, Respondents.
Fourth. Petitioners correctly observe that the medical profession is
one which, like the business of a common carrier, is affected with
public interest. Moreover, they assert that since the law imposes DECISION
upon common carriers the duty of observing extraordinary diligence
in the vigilance over the goods and for the safety of the VILLARAMA, JR., J.:
passengers,40 physicians and surgeons should have the same duty
toward their patients.41 They also contend that the Court of Appeals Challenged in this petition for review on certiorari is the Decision 1
erred when it allegedly assumed that the level of medical practice is dated June 15, 2004 as well as the Resolution2 dated September 1,
lower in Iligan City, thereby reducing the standard of care and 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which
degree of diligence required from physicians and surgeons in Iligan modified the Decision3 dated September 5, 1997 of the Regional
City. Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
 P a g e | 187

The factual antecedents: attributed to malignant tumor cells possibly left behind after surgery.
Few as they may be, these have the capacity to compete for nutrients
On July 7, 1993, respondents’ 11-year old daughter, Angelica such that the body becomes so weak structurally (cachexia) and
Soliman, underwent a biopsy of the mass located in her lower functionally in the form of lower resistance of the body to combat
extremity at the St. Luke’s Medical Center (SLMC). Results showed infection. Such infection becomes uncontrollable and triggers a
that Angelica was suffering from osteosarcoma, osteoblastic type,4 a chain of events (sepsis or septicemia) that may lead to bleeding in
high-grade (highly malignant) cancer of the bone which usually the form of Disseminated Intravascular Coagulation (DIC), as what
afflicts teenage children. Following this diagnosis and as primary the autopsy report showed in the case of Angelica.
intervention, Angelica’s right leg was amputated by Dr. Jaime
Tamayo in order to remove the tumor. As adjuvant treatment to Since the medical records of Angelica were not produced in court,
eliminate any remaining cancer cells, and hence minimize the the trial and appellate courts had to rely on testimonial evidence,
chances of recurrence and prevent the disease from spreading to principally the declarations of petitioner and respondents
other parts of the patient’s body (metastasis), chemotherapy was themselves. The following chronology of events was gathered:
suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another
doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist. On July 23, 1993, petitioner saw the respondents at the hospital after
Angelica’s surgery and discussed with them Angelica’s condition.
On August 18, 1993, Angelica was admitted to SLMC. However, Petitioner told respondents that Angelica should be given two to
she died on September 1, 1993, just eleven (11) days after the three weeks to recover from the operation before starting
(intravenous) administration of the first cycle of the chemotherapy chemotherapy. Respondents were apprehensive due to financial
regimen. Because SLMC refused to release a death certificate constraints as Reynaldo earns only from ₱70,000.00 to ₱150,000.00
without full payment of their hospital bill, respondents brought the a year from his jewelry and watch repairing business.9 Petitioner,
cadaver of Angelica to the Philippine National Police (PNP) Crime however, assured them not to worry about her professional fee and
Laboratory at Camp Crame for post-mortem examination. The told them to just save up for the medicines to be used.
Medico-Legal Report issued by said institution indicated the cause
of death as "Hypovolemic shock secondary to multiple organ Petitioner claimed that she explained to respondents that even when
hemorrhages and Disseminated Intravascular Coagulation."5 a tumor is removed, there are still small lesions undetectable to the
naked eye, and that adjuvant chemotherapy is needed to clean out
On the other hand, the Certificate of Death6 issued by SLMC stated the small lesions in order to lessen the chance of the cancer to recur.
the cause of death as follows: She did not give the respondents any assurance that chemotherapy
will cure Angelica’s cancer. During these consultations with
Immediate cause : a. Osteosarcoma, Status Post AKA respondents, she explained the following side effects of
chemotherapy treatment to respondents: (1) falling hair; (2) nausea
Antecedent cause : b. (above knee amputation) and vomiting; (3) loss of appetite; (4) low count of white blood cells
[WBC], red blood cells [RBC] and platelets; (5) possible sterility
due to the effects on Angelica’s ovary; (6) damage to the heart and
Underlying cause : c. Status Post Chemotherapy kidneys; and (7) darkening of the skin especially when exposed to
sunlight. She actually talked with respondents four times, once at the
On February 21, 1994, respondents filed a damage suit7 against hospital after the surgery, twice at her clinic and the fourth time
petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete when Angelica’s mother called her through long distance.10 This was
and SLMC. Respondents charged them with negligence and disputed by respondents who countered that petitioner gave them
disregard of Angelica’s safety, health and welfare by their careless assurance that there is 95% chance of healing for Angelica if she
administration of the chemotherapy drugs, their failure to observe undergoes chemotherapy and that the only side effects were nausea,
the essential precautions in detecting early the symptoms of fatal vomiting and hair loss.11 Those were the only side-effects of
blood platelet decrease and stopping early on the chemotherapy, chemotherapy treatment mentioned by petitioner.12
which bleeding led to hypovolemic shock that caused Angelica’s
untimely demise. Further, it was specifically averred that petitioner On July 27, 1993, SLMC discharged Angelica, with instruction from
assured the respondents that Angelica would recover in view of 95% petitioner that she be readmitted after two or three weeks for the
chance of healing with chemotherapy ("Magiging normal na ang chemotherapy.
anak nyo basta ma-chemo. 95% ang healing") and when asked
regarding the side effects, petitioner mentioned only slight vomiting,
hair loss and weakness ("Magsusuka ng kaunti. Malulugas ang On August 18, 1993, respondents brought Angelica to SLMC for
buhok. Manghihina"). Respondents thus claimed that they would not chemotherapy, bringing with them the results of the laboratory tests
have given their consent to chemotherapy had petitioner not falsely requested by petitioner: Angelica’s chest x-ray, ultrasound of the
assured them of its side effects. liver, creatinine and complete liver function tests.13 Petitioner
proceeded with the chemotherapy by first administering hydration
fluids to Angelica.14
In her answer,8 petitioner denied having been negligent in
administering the chemotherapy drugs to Angelica and asserted that
she had fully explained to respondents how the chemotherapy will The following day, August 19, petitioner began administering three
affect not only the cancer cells but also the patient’s normal body chemotherapy drugs – Cisplatin,15 Doxorubicin16 and Cosmegen17 –
parts, including the lowering of white and red blood cells and intravenously. Petitioner was supposedly assisted by her trainees Dr.
platelets. She claimed that what happened to Angelica can be Leo Marbella18 and Dr. Grace Arriete.19 In his testimony, Dr.
 P a g e | 188

Marbella denied having any participation in administering the said By August 26, Angelica was bleeding through the mouth.
chemotherapy drugs.20 Respondents also saw blood on her anus and urine. When Lina asked
petitioner what was happening to her daughter, petitioner replied,
On the second day of chemotherapy, August 20, respondents noticed "Bagsak ang platelets ng anak mo." Four units of platelet
reddish discoloration on Angelica’s face.21 They asked petitioner concentrates were then transfused to Angelica. Petitioner prescribed
about it, but she merely quipped, "Wala yan. Epekto ng gamot."22 Solucortef. Considering that Angelica’s fever was high and her
Petitioner recalled noticing the skin rashes on the nose and cheek white blood cell count was low, petitioner prescribed Leucomax.
area of Angelica. At that moment, she entertained the possibility that About four to eight bags of blood, consisting of packed red blood
Angelica also had systemic lupus and consulted Dr. Victoria cells, fresh whole blood, or platelet concentrate, were transfused to
Abesamis on the matter.23 Angelica. For two days (August 27 to 28), Angelica continued
bleeding, but petitioner claimed it was lesser in amount and in
On the third day of chemotherapy, August 21, Angelica had frequency. Petitioner also denied that there were gadgets attached to
difficulty breathing and was thus provided with oxygen inhalation Angelica at that time.34
apparatus. This time, the reddish discoloration on Angelica’s face
had extended to her neck, but petitioner dismissed it again as merely On August 29, Angelica developed ulcers in her mouth, which
the effect of medicines.24 Petitioner testified that she did not see any petitioner said were blood clots that should not be removed.
discoloration on Angelica’s face, nor did she notice any difficulty in Respondents claimed that Angelica passed about half a liter of blood
the child’s breathing. She claimed that Angelica merely complained through her anus at around seven o’clock that evening, which
of nausea and was given ice chips.251avvphi1 petitioner likewise denied.

On August 22, 1993, at around ten o’clock in the morning, upon On August 30, Angelica continued bleeding. She was restless as
seeing that their child could not anymore bear the pain, respondents endotracheal and nasogastric tubes were inserted into her weakened
pleaded with petitioner to stop the chemotherapy. Petitioner body. An aspiration of the nasogastric tube inserted to Angelica also
supposedly replied: "Dapat 15 Cosmegen pa iyan. Okay, let’s revealed a bloody content. Angelica was given more platelet
observe. If pwede na, bigyan uli ng chemo." At this point, concentrate and fresh whole blood, which petitioner claimed
respondents asked petitioner’s permission to bring their child home. improved her condition. Petitioner told Angelica not to remove the
Later in the evening, Angelica passed black stool and reddish urine.26 endotracheal tube because this may induce further bleeding.35 She
Petitioner countered that there was no record of blackening of stools was also transferred to the intensive care unit to avoid infection.
but only an episode of loose bowel movement (LBM). Petitioner
also testified that what Angelica complained of was carpo-pedal The next day, respondents claimed that Angelica became hysterical,
spasm, not convulsion or epileptic attack, as respondents call it vomited blood and her body turned black. Part of Angelica’s skin
(petitioner described it in the vernacular as "naninigas ang kamay at was also noted to be shredding by just rubbing cotton on it. Angelica
paa"). She then requested for a serum calcium determination and was so restless she removed those gadgets attached to her, saying
stopped the chemotherapy. When Angelica was given calcium "Ayaw ko na"; there were tears in her eyes and she kept turning her
gluconate, the spasm and numbness subsided.27 head. Observing her daughter to be at the point of death, Lina asked
for a doctor but the latter could not answer her anymore.36 At this
The following day, August 23, petitioner yielded to respondents’ time, the attending physician was Dr. Marbella who was shaking his
request to take Angelica home. But prior to discharging Angelica, head saying that Angelica’s platelets were down and respondents
petitioner requested for a repeat serum calcium determination and should pray for their daughter. Reynaldo claimed that he was
explained to respondents that the chemotherapy will be temporarily introduced to a pediatrician who took over his daughter’s case, Dr.
stopped while she observes Angelica’s muscle twitching and serum Abesamis who also told him to pray for his daughter. Angelica
calcium level. Take-home medicines were also prescribed for continued to have difficulty in her breathing and blood was being
Angelica, with instructions to respondents that the serum calcium suctioned from her stomach. A nurse was posted inside Angelica’s
test will have to be repeated after seven days. Petitioner told room to assist her breathing and at one point they had to revive
respondents that she will see Angelica again after two weeks, but Angelica by pumping her chest. Thereafter, Reynaldo claimed that
respondents can see her anytime if any immediate problem arises.28 Angelica already experienced difficulty in urinating and her bowel
consisted of blood-like fluid. Angelica requested for an electric fan
However, Angelica remained in confinement because while still in as she was in pain. Hospital staff attempted to take blood samples
the premises of SLMC, her "convulsions" returned and she also had from Angelica but were unsuccessful because they could not even
LBM. Angelica was given oxygen and administration of calcium locate her vein. Angelica asked for a fruit but when it was given to
continued.29 her, she only smelled it. At this time, Reynaldo claimed he could not
find either petitioner or Dr. Marbella. That night, Angelica became
hysterical and started removing those gadgets attached to her. At
The next day, August 24, respondents claimed that Angelica still three o’clock in the morning of September 1, a priest came and they
suffered from convulsions. They also noticed that she had a fever prayed before Angelica expired. Petitioner finally came back and
and had difficulty breathing.30 Petitioner insisted it was carpo-pedal supposedly told respondents that there was "malfunction" or bogged-
spasm, not convulsions. She verified that at around 4:50 that down machine.37
afternoon, Angelica developed difficulty in breathing and had fever.
She then requested for an electrocardiogram analysis, and infused
calcium gluconate on the patient at a "stat dose." She further ordered By petitioner’s own account, Angelica was merely irritable that day
that Angelica be given Bactrim,31 a synthetic antibacterial (August 31). Petitioner noted though that Angelica’s skin was indeed
combination drug,32 to combat any infection on the child’s body.33 sloughing off.38 She stressed that at 9:30 in the evening, Angelica
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pulled out her endotracheal tube.39 On September 1, exactly two diagnosis still remains at 80% to 90%. Usually, deaths occur from
weeks after being admitted at SLMC for chemotherapy, Angelica metastasis, or spread of the cancer to other vital organs like the liver,
died.40 The cause of death, according to petitioner, was septicemia, causing systemic complications. The modes of therapy available are
or overwhelming infection, which caused Angelica’s other organs to the removal of the primary source of the cancerous growth and then
fail.41 Petitioner attributed this to the patient’s poor defense the residual cancer cells or metastasis should be treated with
mechanism brought about by the cancer itself.42 chemotherapy. Dr. Tamayo further explained that patients with
osteosarcoma have poor defense mechanism due to the cancer cells
While he was seeking the release of Angelica’s cadaver from SLMC, in the blood stream. In the case of Angelica, he had previously
Reynaldo claimed that petitioner acted arrogantly and called him explained to her parents that after the surgical procedure,
names. He was asked to sign a promissory note as he did not have chemotherapy is imperative so that metastasis of these cancer cells
cash to pay the hospital bill. 43 will hopefully be addressed. He referred the patient to petitioner
because he felt that petitioner is a competent oncologist. Considering
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, that this type of cancer is very aggressive and will metastasize early,
Medico-Legal Officer of the PNP-Crime Laboratory who conducted it will cause the demise of the patient should there be no early
the autopsy on Angelica’s cadaver, and Dr. Melinda Vergara intervention (in this case, the patient developed sepsis which caused
Balmaceda who is a Medical Specialist employed at the Department her death). Cancer cells in the blood cannot be seen by the naked eye
of Health (DOH) Operations and Management Services. nor detected through bone scan. On cross-examination, Dr. Tamayo
stated that of the more than 50 child patients who had osteogenic
sarcoma he had handled, he thought that probably all of them died
Testifying on the findings stated in her medico-legal report, Dr. within six months from amputation because he did not see them
Vergara noted the following: (1) there were fluids recovered from anymore after follow-up; it is either they died or had seen another
the abdominal cavity, which is not normal, and was due to doctor.46
hemorrhagic shock secondary to bleeding; (2) there was hemorrhage
at the left side of the heart; (3) bleeding at the upper portion of and
areas adjacent to, the esophagus; (4) lungs were heavy with bleeding In dismissing the complaint, the trial court held that petitioner was
at the back and lower portion, due to accumulation of fluids; (4) not liable for damages as she observed the best known procedures
yellowish discoloration of the liver; (5) kidneys showed appearance and employed her highest skill and knowledge in the administration
of facial shock on account of hemorrhages; and (6) reddishness on of chemotherapy drugs on Angelica but despite all efforts said
external surface of the spleen. All these were the end result of patient died. It cited the testimony of Dr. Tamayo who testified that
"hypovolemic shock secondary to multiple organ hemorrhages and he considered petitioner one of the most proficient in the treatment
disseminated intravascular coagulation." Dr. Vergara opined that this of cancer and that the patient in this case was afflicted with a very
can be attributed to the chemical agents in the drugs given to the aggressive type of cancer necessitating chemotherapy as adjuvant
victim, which caused platelet reduction resulting to bleeding treatment. Using the standard of negligence laid down in Picart v.
sufficient to cause the victim’s death. The time lapse for the Smith,47 the trial court declared that petitioner has taken the
production of DIC in the case of Angelica (from the time of necessary precaution against the adverse effect of chemotherapy on
diagnosis of sarcoma) was too short, considering the survival rate of the patient, adding that a wrong decision is not by itself negligence.
about 3 years. The witness conceded that the victim will also die of Respondents were ordered to pay their unpaid hospital bill in the
osteosarcoma even with amputation or chemotherapy, but in this amount of ₱139,064.43.48
case Angelica’s death was not caused by osteosarcoma. Dr. Vergara
admitted that she is not a pathologist but her statements were based Respondents appealed to the CA which, while concurring with the
on the opinion of an oncologist whom she had interviewed. This trial court’s finding that there was no negligence committed by the
oncologist supposedly said that if the victim already had DIC prior petitioner in the administration of chemotherapy treatment to
to the chemotherapy, the hospital staff could have detected it. 44 Angelica, found that petitioner as her attending physician failed to
fully explain to the respondents all the known side effects of
On her part, Dr. Balmaceda declared that it is the physician’s duty to chemotherapy. The appellate court stressed that since the
inform and explain to the patient or his relatives every known side respondents have been told of only three side effects of
effect of the procedure or therapeutic agents to be administered, chemotherapy, they readily consented thereto. Had petitioner made
before securing the consent of the patient or his relatives to such known to respondents those other side effects which gravely affected
procedure or therapy. The physician thus bases his assurance to the their child -- such as carpo-pedal spasm, sepsis, decrease in the
patient on his personal assessment of the patient’s condition and his blood platelet count, bleeding, infections and eventual death --
knowledge of the general effects of the agents or procedure that will respondents could have decided differently or adopted a different
be allowed on the patient. Dr. Balmaceda stressed that the patient or course of action which could have delayed or prevented the early
relatives must be informed of all known side effects based on studies death of their child.
and observations, even if such will aggravate the patient’s
condition.45 The CA thus declared:

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Plaintiffs-appellants’ child was suffering from a malignant disease.
Angelica’s lower extremity, testified for the defendants. He The attending physician recommended that she undergo
explained that in case of malignant tumors, there is no guarantee that chemotherapy treatment after surgery in order to increase her
the ablation or removal of the amputated part will completely cure chances of survival. Appellants consented to the chemotherapy
the cancer. Thus, surgery is not enough. The mortality rate of treatment because they believed in Dr. Rubi Li’s representation that
osteosarcoma at the time of modern chemotherapy and early the deceased would have a strong chance of survival after
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chemotherapy and also because of the representation of appellee Dr. her professional competence to attend to the medical needs of
Rubi Li that there were only three possible side-effects of the Angelica.
treatment. However, all sorts of painful side-effects resulted from the
treatment including the premature death of Angelica. The appellants Citing numerous trainings, distinctions and achievements in her field
were clearly and totally unaware of these other side-effects which and her current position as co-director for clinical affairs of the
manifested only during the chemotherapy treatment. This was shown Medical Oncology, Department of Medicine of SLMC, petitioner
by the fact that every time a problem would take place regarding contends that in the absence of any clear showing or proof, she
Angelica’s condition (like an unexpected side-effect manifesting cannot be charged with negligence in not informing the respondents
itself), they would immediately seek explanation from Dr. Rubi Li. all the side effects of chemotherapy or in the pre-treatment
Surely, those unexpected side-effects culminating in the loss of a procedures done on Angelica.
love[d] one caused the appellants so much trouble, pain and
suffering. As to the cause of death, petitioner insists that Angelica did not die
of platelet depletion but of sepsis which is a complication of the
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li cancer itself. Sepsis itself leads to bleeding and death. She explains
negligent which would entitle plaintiffs-appellants to their claim for that the response rate to chemotherapy of patients with osteosarcoma
damages. is high, so much so that survival rate is favorable to the patient.
Petitioner then points to some probable consequences if Angelica
xxxx had not undergone chemotherapy. Thus, without chemotherapy,
other medicines and supportive treatment, the patient might have
WHEREFORE, the instant appeal is hereby GRANTED. died the next day because of massive infection, or the cancer cells
Accordingly, the assailed decision is hereby modified to the extent might have spread to the brain and brought the patient into a coma,
that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs- or into the lungs that the patient could have been hooked to a
appellants the following amounts: respirator, or into her kidneys that she would have to undergo
dialysis. Indeed, respondents could have spent as much because of
1. Actual damages of P139,064.43, plus P9,828.00 for these complications. The patient would have been deprived of the
funeral expenses; chance to survive the ailment, of any hope for life and her "quality of
life" surely compromised. Since she had not been shown to be at
fault, petitioner maintains that the CA erred in holding her liable for
2. Moral damages of P200,000.00; the damages suffered by the respondents.50

3. Exemplary damages of P50,000.00; The issue to be resolved is whether the petitioner can be held liable
for failure to fully disclose serious side effects to the parents of the
4. Attorney’s fee of P30,000.00. child patient who died while undergoing chemotherapy, despite the
absence of finding that petitioner was negligent in administering the
SO ORDERED.49 (Emphasis supplied.) said treatment.

Petitioner filed a motion for partial reconsideration which the The petition is meritorious.
appellate court denied.
The type of lawsuit which has been called medical malpractice or,
Hence, this petition. more appropriately, medical negligence, is that type of claim which
a victim has available to him or her to redress a wrong committed by
Petitioner assails the CA in finding her guilty of negligence in not a medical professional which has caused bodily harm. In order to
explaining to the respondents all the possible side effects of the successfully pursue such a claim, a patient must prove that a health
chemotherapy on their child, and in holding her liable for actual, care provider, in most cases a physician, either failed to do
moral and exemplary damages and attorney’s fees. Petitioner something which a reasonably prudent health care provider would
emphasized that she was not negligent in the pre-chemotherapy have done, or that he or she did something that a reasonably prudent
procedures and in the administration of chemotherapy treatment to provider would not have done; and that that failure or action caused
Angelica. injury to the patient.51

On her supposed non-disclosure of all possible side effects of This Court has recognized that medical negligence cases are best
chemotherapy, including death, petitioner argues that it was proved by opinions of expert witnesses belonging in the same
foolhardy to imagine her to be all-knowing/omnipotent. While the general neighborhood and in the same general line of practice as
theoretical side effects of chemotherapy were explained by her to the defendant physician or surgeon. The deference of courts to the
respondents, as these should be known to a competent doctor, expert opinion of qualified physicians stems from the former’s
petitioner cannot possibly predict how a particular patient’s genetic realization that the latter possess unusual technical skills which
make-up, state of mind, general health and body constitution would laymen in most instances are incapable of intelligently evaluating,
respond to the treatment. These are obviously dependent on too hence the indispensability of expert testimonies.52
many known, unknown and immeasurable variables, thus requiring
that Angelica be, as she was, constantly and closely monitored In this case, both the trial and appellate courts concurred in finding
during the treatment. Petitioner asserts that she did everything within that the alleged negligence of petitioner in the administration of
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chemotherapy drugs to respondents’ child was not proven otherwise the omission, however unpardonable, is without legal
considering that Drs. Vergara and Balmaceda, not being oncologists consequence. And, as in malpractice actions generally, there must be
or cancer specialists, were not qualified to give expert opinion as to a causal relationship between the physician’s failure to divulge and
whether petitioner’s lack of skill, knowledge and professional damage to the patient.60
competence in failing to observe the standard of care in her line of
practice was the proximate cause of the patient’s death. Furthermore, Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it
respondents’ case was not at all helped by the non-production of as integral part of physician’s overall obligation to patient, the duty
medical records by the hospital (only the biopsy result and medical of reasonable disclosure of available choices with respect to
bills were submitted to the court). Nevertheless, the CA found proposed therapy and of dangers inherently and potentially involved
petitioner liable for her failure to inform the respondents on all in each. However, the physician is not obliged to discuss relatively
possible side effects of chemotherapy before securing their consent minor risks inherent in common procedures when it is common
to the said treatment. knowledge that such risks inherent in procedure of very low
incidence. Cited as exceptions to the rule that the patient should not
The doctrine of informed consent within the context of physician- be denied the opportunity to weigh the risks of surgery or treatment
patient relationships goes far back into English common law. As are emergency cases where it is evident he cannot evaluate data, and
early as 1767, doctors were charged with the tort of "battery" (i.e., where the patient is a child or incompetent.62 The court thus
an unauthorized physical contact with a patient) if they had not concluded that the patient’s right of self-decision can only be
gained the consent of their patients prior to performing a surgery or effectively exercised if the patient possesses adequate information to
procedure. In the United States, the seminal case was Schoendorff v. enable him in making an intelligent choice. The scope of the
Society of New York Hospital53 which involved unwanted treatment physician’s communications to the patient, then must be measured
performed by a doctor. Justice Benjamin Cardozo’s oft-quoted by the patient’s need, and that need is whatever information is
opinion upheld the basic right of a patient to give consent to any material to the decision. The test therefore for determining whether a
medical procedure or treatment: "Every human being of adult years potential peril must be divulged is its materiality to the patient’s
and sound mind has a right to determine what shall be done with his decision.63
own body; and a surgeon who performs an operation without his
patient’s consent, commits an assault, for which he is liable in Cobbs v. Grant further reiterated the pronouncement in Canterbury
damages."54 From a purely ethical norm, informed consent evolved v. Spence that for liability of the physician for failure to inform
into a general principle of law that a physician has a duty to disclose patient, there must be causal relationship between physician’s failure
what a reasonably prudent physician in the medical community in to inform and the injury to patient and such connection arises only if
the exercise of reasonable care would disclose to his patient as to it is established that, had revelation been made, consent to treatment
whatever grave risks of injury might be incurred from a proposed would not have been given.
course of treatment, so that a patient, exercising ordinary care for his
own welfare, and faced with a choice of undergoing the proposed There are four essential elements a plaintiff must prove in a
treatment, or alternative treatment, or none at all, may intelligently malpractice action based upon the doctrine of informed consent: "(1)
exercise his judgment by reasonably balancing the probable risks the physician had a duty to disclose material risks; (2) he failed to
against the probable benefits.55 disclose or inadequately disclosed those risks; (3) as a direct and
proximate result of the failure to disclose, the patient consented to
Subsequently, in Canterbury v. Spence56 the court observed that the treatment she otherwise would not have consented to; and (4)
duty to disclose should not be limited to medical usage as to arrogate plaintiff was injured by the proposed treatment." The gravamen in an
the decision on revelation to the physician alone. Thus, respect for informed consent case requires the plaintiff to "point to significant
the patient’s right of self-determination on particular therapy undisclosed information relating to the treatment which would have
demands a standard set by law for physicians rather than one which altered her decision to undergo it.64
physicians may or may not impose upon themselves.57 The scope of
disclosure is premised on the fact that patients ordinarily are persons Examining the evidence on record, we hold that there was adequate
unlearned in the medical sciences. Proficiency in diagnosis and disclosure of material risks inherent in the chemotherapy procedure
therapy is not the full measure of a physician’s responsibility. It is performed with the consent of Angelica’s parents. Respondents
also his duty to warn of the dangers lurking in the proposed could not have been unaware in the course of initial treatment and
treatment and to impart information which the patient has every right amputation of Angelica’s lower extremity, that her immune system
to expect. Indeed, the patient’s reliance upon the physician is a trust was already weak on account of the malignant tumor in her knee.
of the kind which traditionally has exacted obligations beyond those When petitioner informed the respondents beforehand of the side
associated with armslength transactions.58 The physician is not effects of chemotherapy which includes lowered counts of white and
expected to give the patient a short medical education, the disclosure red blood cells, decrease in blood platelets, possible kidney or heart
rule only requires of him a reasonable explanation, which means damage and skin darkening, there is reasonable expectation on the
generally informing the patient in nontechnical terms as to what is at part of the doctor that the respondents understood very well that the
stake; the therapy alternatives open to him, the goals expectably to severity of these side effects will not be the same for all patients
be achieved, and the risks that may ensue from particular treatment undergoing the procedure. In other words, by the nature of the
59
or no treatment. As to the issue of demonstrating what risks are disease itself, each patient’s reaction to the chemical agents even
considered material necessitating disclosure, it was held that experts with pre-treatment laboratory tests cannot be precisely determined
are unnecessary to a showing of the materiality of a risk to a by the physician. That death can possibly result from complications
patient’s decision on treatment, or to the reasonably, expectable of the treatment or the underlying cancer itself, immediately or
effect of risk disclosure on the decision. Such unrevealed risk that sometime after the administration of chemotherapy drugs, is a risk
should have been made known must further materialize, for
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that cannot be ruled out, as with most other major medical WHEREFORE, the petition for review on certiorari is GRANTED.
procedures, but such conclusion can be reasonably drawn from the The Decision dated June 15, 2004 and the Resolution dated
general side effects of chemotherapy already disclosed. September 1, 2004 of the Court of Appeals in CA-G.R. CV No.
58013 are SET ASIDE.
As a physician, petitioner can reasonably expect the respondents to
have considered the variables in the recommended treatment for The Decision dated September 5, 1997 of the Regional Trial Court
their daughter afflicted with a life-threatening illness. On the other of Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED
hand, it is difficult to give credence to respondents’ claim that and UPHELD.No costs.SO ORDERED
petitioner told them of 95% chance of recovery for their daughter, as
it was unlikely for doctors like petitioner who were dealing with G.R. No. 211111, September 25, 2017
grave conditions such as cancer to have falsely assured patients of
chemotherapy’s success rate. Besides, informed consent laws in C.F. SHARP CREW MANAGEMENT, INC., ITS PRESIDENT,
other countries generally require only a reasonable explanation of AND GULF ENERGY MARITIME, Petitioners, v. NOEL N.
potential harms, so specific disclosures such as statistical data, may ORBETA, Respondent.
not be legally necessary.65
DECISION
The element of ethical duty to disclose material risks in the proposed
medical treatment cannot thus be reduced to one simplistic formula
applicable in all instances. Further, in a medical malpractice action DEL CASTILLO, J.:
based on lack of informed consent, "the plaintiff must prove both the
duty and the breach of that duty through expert testimony.66 Such Assailed in this Petition for Review on Certiorari1 are the October
expert testimony must show the customary standard of care of 18, 2013 Decision2 and January 28, 2014 Resolution3 of the Court of
physicians in the same practice as that of the defendant doctor. 67 Appeals (CA) denying the Petition for Certiorari in CA-G.R. SP No.
125046 and affirming in toto the December 29, 2011 Decision4 and
In this case, the testimony of Dr. Balmaceda who is not an April 30, 2012 Resolution5 of the National Labor Relations
oncologist but a Medical Specialist of the DOH’s Operational and Commission (NLRC) in NLRC LAC (OFW-M) No. 05-000371-11.
Management Services charged with receiving complaints against
hospitals, does not qualify as expert testimony to establish the Factual Antecedents
standard of care in obtaining consent for chemotherapy treatment. In
the absence of expert testimony in this regard, the Court feels On June 11, 2009, respondent Noel N. Orbeta was hired by
hesitant in defining the scope of mandatory disclosure in cases of petitioner C.F. Sharp Crew Management, Inc. (CF Sharp), on
malpractice based on lack of informed consent, much less set a behalf of its foreign principal and co-petitioner herein, Gulf
standard of disclosure that, even in foreign jurisdictions, has been Energy Maritime (GEM), as Able Seaman on board the vessel
noted to be an evolving one. "M/T Gulf Coral". He boarded on September 9, 2009 and
thereupon commenced his work.
As society has grappled with the juxtaposition between personal It appears that on January 3, 2010, while on duty, respondent, as
autonomy and the medical profession's intrinsic impetus to cure, the he was closing the vessel's air valve, slipped and fell on his back,
law defining "adequate" disclosure has undergone a dynamic and landed on the vessel's metal floor.6
evolution. A standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable person in the On February 8, 2010, while the vessel was docked in the United
patient’s position regards as significant. This change in perspective Arab Emirates, respondent was referred for medical examination
is especially important as medical breakthroughs move practitioners after complaining of pain in his lower right abdomen, difficulty in
to the cutting edge of technology, ever encountering new and passing urine, and slight irritation in the urinal area. After
heretofore unimagined treatments for currently incurable diseases or examination by a physician, he was diagnosed with acute lumbago
ailments. An adaptable standard is needed to account for this and recommended for immediate repatriation.7
constant progression. Reasonableness analyses permeate our legal
system for the very reason that they are determined by social norms, On February 10, 2010, respondent was repatriated and, upon
expanding and contracting with the ebb and flow of societal arrival, he immediately reported for post-employment examination
evolution. and treatment to the company-designated physician, to whom he
disclosed the January 3, 2010 accident. He was placed under the
As we progress toward the twenty-first century, we now realize that care of an orthopedic surgeon, who found him to be suffering
the legal standard of disclosure is not subject to construction as a from "compression fracture, L1, minimal."8 As a result,
categorical imperative. Whatever formulae or processes we adopt are respondent underwent physical therapy to rehabilitate his back,
only useful as a foundational starting point; the particular quality or and was advised to wear a lumbar corset and undergo magnetic
quantity of disclosure will remain inextricably bound by the facts of resonance imaging (MRI) of the lumbosacral spine. For
each case. Nevertheless, juries that ultimately determine whether a medication, he was given neuron enhancers and pain relievers. 9
physician properly informed a patient are inevitably guided by what
they perceive as the common expectation of the medical consumer On June 16, 2010, after the MRI results came out, respondent was
—"a reasonable person in the patient’s position when deciding to temporarily diagnosed with "lumbosacral muscular spasm with
accept or reject a recommended medical procedure." 68 (Emphasis mild spondylosis L3-L4;"10 the company-designated physician also
supplied.) concluded that there was no compression fracture, contrary to
 P a g e | 193

what was initially suspected. Respondent was thus given a Grade of US$3,070.00; c) moral and exemplary damages at P500,000.00
10 partial disability rating pertaining to moderate rigidity of the each; and d) 10% attorney's fees.
truncal area.11 He was scheduled to undergo a bone scan on July
16, 2010. In their joint Position Paper18 and other pleadings,19 petitioners
sought dismissal of the complaint, arguing that respondent is not
On July 16, 2010, respondent failed to appear before the company entitled to his claim of permanent total disability benefits, in view
physician for the scheduled bone scan;12 instead, it appears that he of the company designated physician's final and binding Grade 10
consulted with an independent orthopedic surgeon, Dr. Nicanor assessment; that respondent abandoned his treatment, which was
Escutin (Dr. Escutin), who prepared and signed a "Disability still ongoing when he filed the labor case; that respondent is
Report"13 dated September 8, 2010 stating as follows: entitled only to US$17,954.00 as compensation for his Grade 10
disability rating; yet by abandoning his treatment and violating the
FINAL DIAGNOSIS POEA contract, respondent should be held responsible and is not
entitled to disability and other benefits, damages, and all other
> COMPRESSION FRACTURE, L1 claims, and for this reason, respondent's case should be dismissed;
> LUMBAR SPONDYLOSIS that respondent's resort to an independent physician who arrived
at a contrary finding entitled petitioners to secure the opinion of a
DISABILITY RATING: third doctor, pursuant to Section 20-B(3) of the POEA contract,20
which could no longer be done in view of the filing of the labor
Based on the physical examination and supported by laboratory case, and for this reason, the opinion of the company-designated
examination, he had his injury on his LOW BACK while working. physician should instead prevail; that respondent's back pain does
He fell on the deck when their ship swayed. The fall was strong not deserve a Grade 1 rating under Section 32 of the POEA
enough which resulted in some injury on his lumbar spine. He had contract,21 as it is not severe and did not render him completely
several months of physical therapy but his back pain persisted, so immobile or paralyzed; and, that respondent's other claims are
he had MRI studies. His MRI showed that there is a [sic] some thereby rendered unfounded and baseless. Petitioners prayed that
defect on his L3 vertebra. He was advised to have Bone scanning they be held liable only for the total amount of US$17,954.00
test to determine what is causing the abnormality at L3. The which is equivalent to the Grade 10 disability rating given by the
spondylosis at L3/L4 showed that there is some structural defect at company-designated physician.
L3 which is maybe due to the fall he sustained last Jan '10. He
should undergo Bone Scan and EMG-NCV to determine the exact On February 23, 2011, a Decision22 was rendered by Labor Arbiter
problem on his lumbar spine. If nothing is done, his condition Catalino R. Laderas granting disability benefits and attorney's fees
might worsen which can incapacitate him. He will [sic] is not in favor of respondent. The Decision decrees as follows:
capable of returning to his former job as a seaman since he has It appears from the foregoing facts, circumstances and arguments
still on and off back pain. advanced by the opposing parties, the only issue is that of disability
rating.
He is given a PERMANENT DISABILITY. He is UNFIT FOR
SEADUTY in whatever capacity as a SEAMAN.14 After [a] careful evaluation of the positions of complainant and
[respondents,] this Office finds the disability gradings issued by
Notably, Dr. Escutin's findings included a recommendation for the company designated doctor and the independent Physician to
respondent to undergo Bone Scan and EMG-NCV15 to determine be inappropriate.
the exact problem on his lumbar spine, which is consistent with
the recommendations of the company-designated physician. It was established that the complainant suffered injury of [the]
lumbar spine due to [an] accident while on board [the] MV Gulf
Ruling of the Labor Arbiter Coral on January 3, 2010. He was subjected to [a] series of
Medical examination and treatment for almost five (5) months by
Instead of following the respective medical opinions of his and the the company doctor and later on by an independent physician for
company-designated physician, as well as subjecting himself to the having suffered intermiheat [sic] pains at the back.
required bone scan and other tests to fully determine and treat his
condition, respondent filed on July 20, 2010 a complaint for On June 16, 2010 the [sic] Dra. Susannah Ong-Salvador,
payment of permanent and total disability benefits, medical [respondents'] Medical Coordinator prematurely issued a disability
expenses, damages, and attorney's fees against petitioners before assessment of Grade 10 to the complainant x x x though the
the NLRC NCR, Quezon City, docketed as NLRC-NCR Case No. complainant has yet to undergo Bone Scan xx x. This to our mind
(M) 07-09911-10. is [an] inappropriate assessment of the disability grade of [the]
complainant because he has not fully recovered. While it may be
In his Position Paper16 and other pleadings,17 respondent claimed true that the assessment of the company designated physician has
that his work-related spinal injury entitles him to permanent and great probative value, it could not be said as [binding] and
total disability and other benefits afforded him under his conclusive as the assessment issued to complainant was done prior
Philippine Overseas Employment Administration (POEA) to the termination of Medical examinations.
Standard Employment Contract, as well as damages for the
anxiety and stress he suffered as a result of petitioners' refusal to Independent Doctor assessment of complainant's disability
pay his claims. Thus, he prayed that petitioners be ordered to pay grading is likewise inappropriate as it was merely based on
him a) permanent total disability benefits in the amount of presumption. It was noted that from the disability rating issued by
US$89,000.00 or its peso equivalent; b) sickness benefit allowance Dr. Nicanor F. Escutin x x x is not yet certain to warrant issuance
 P a g e | 194

of disability rating. x x x perspectives. It is worthy to underscore that both doctors are

Orthopedic Surgeons, whose competence and expertise to address
xxxx the medical condition of the complainant-appellee are definitely
beyond question.
Considering therefore the degree of the injury suffered and the
duration of complainant's Medical treatment this Office finds the We analyzed the disability ratings of the company-designated
disability rating stated in paragraph 4, Chest-Trunk-Spine, Section physician and Dr. Escutin for the purpose of resolving the issue
32 of Standard Terms and Conditions Governing the Employment pertaining to the extent of disability compensation and We are
of Filipino Seafarers on Board Ocean-Going Vessel applicable persuaded that the former had thoroughly examined complainant-
which states: appellee. Dr. Escutin however only saw him once and the basis of
his disability report was not revealed, thus making his finding
'CHEST-TRUNK-SPINE inconclusive. However, We cannot ignore the fact that the
company doctor merely gave a provisional rating. Additionally,
xxxx complainant-appellee was advised to undergo bone scan. We are
convinced that these facts are articulate indicators that
4. Fracture of the dorsal or lumbar spines resulting to [severe] or complainant-appellee's illness has not been resolved even after the
total rigidity of the trunk or total loss of lifting power of heavy lapse of 120 days.
objects ------- GR. 6
It bears to stress that it is not the medical significance of the illness
xxxx that solely determines whether a seafarer is permanently or totally
disabled. The nature of his job vis-a-vis his illness should also
The [claim] for payment of Medical expenses and damages has no considered. Complainant-Appellee worked as an Able Seaman. As
legal and factual bases hence the same must fail. such he is expected to be physically fit because agility and
[strength] are requirements of his job. Complainant-Appellee has
The claim for payment of attorney's fees is warranted in the light been found to be suffering from spondylosis, which has been
of the legal services rendered by the counsel for the complainant described as the degeneration of the spine caused by wear and tear
in protecting the rights and interest of his client by way of recovery on the joints. According to medical literature, deterioration
of the disability benefits of the latter. involves the cartilages and bones in either the cervical spine (joints
of the neck) sometimes referred to as cervical spondylosis or the
WHEREFORE, premised on the foregoing considerations, lumbar spine sometimes referred to as lumbar degenerative disc
judgment is hereby rendered ordering the respondents disease x x x. With this kind of ailment, it is plain to see that
To pay complainant his disability benefits equivalent to Disability complainant-appellee's seafaring career as an able seaman has
Grade 6 in the amount of US$44,550 or its peso equivalent at the come to an untimely end. It is for this reason that We resolve to
time of payment. grant him total and permanent disability benefit.

To pay attorney's fee of ten (10%) percent of complainant's The concept of total and permanent disability has been expounded
monetary award. by the Supreme Court in this wise:
Other claims dismissed. 'To be entitled to Grade 1 disability benefits, the employee 's
disability must not only be total but also permanent.
SO ORDERED.23
Permanent disability is the inability of a worker to perform his job
Ruling of the National Labor Relations Commission
for more than 120 days, regardless of whether or not he loses the
use of any of his body.
Petitioners took the matter before the NLRC, via appeal docketed
as NLRC LAC (OFW-M) No. 05-000371-11.
Total disability, on the other hand, does not mean absolute
helplessness. In disability compensation, it is not the injury which
On December 29, 2011, the NLRC issued its Decision, declaring as
is compensated, but rather the incapacity to work resulting in the
follows:
impairment of one's earning capacity. Total disability does not
The appeal has no merit.
require that the employee be absolutely disabled, or totally
[paralyzed] What is necessary is that the injury must be such that
It is an undisputed fact that complainant-appellee's work-related
the employee cannot pursue his usual work and earn therefrom.' x
injury has not been resolved despite the extensive medical
xx
management undertaken by the company-designated physician for
a period of more than 120 days or from February 11 to June 16, With regard to the amount of total and permanent disability
2010. By reason thereof, both the company-designated physician benefit due complainant-appellee, the sum of US$89,100.00 is
and Dr. Escutin found it imperative for the complainant-appellee hereby awarded to him based on the benevolent provisions of the
to undergo a Bone Scan for the purpose of determining the cause CBA and not on the POEA Standard Employment Contract x x x.
of the abnormality in his lumbar spine. As it remains unresolved,
complainant-appellee continues to suffer intermittent pain on his Finally, the award of attorney's fees to the complainant-appellee is
back. Undeniably, this unstable condition of the complainant- hereby deleted considering the apparent lack of bad faith on the
appellee gave rise to the varying assessments on the extent of his part of the respondents-appellants in dealing with the predicament
disability by the two (2) doctors based on their own medical of the complainant-appellee. Respondents-Appellants' disclaimer
 P a g e | 195

of liability for total and permanent disability benefits to the To be sure, in the case of Valenzona vs. Fair Shipping
complainant-appellee is primarily anchored on their honest Corporation, the Supreme Court minced no words in ruling that
reliance on the assessment rendered by the company-designated the inability of a seafarer to perform any gainful occupation for a
physician. It is a well-settled principle that even if a claimant is continuous period exceeding 120 days renders his disability total
compelled to litigate with third persons or to incur expenses to and permanent. x x x
protect his rights, attorney's fees may still not be awarded where
no sufficient showing of bad faith could be reflected in a party's xxxx
persistence in a case other than an erroneous conviction of the
righteousness of his cause x x x. In the case at bench, private respondent was medically repatriated
on 10 February 2010 and yet, at the time of the filing of the
WHEREFORE, premises considered, the appeal is DENIED. The present complaint on 20 July 2010, he has yet to obtain
Decision of Labor Arbiter Catalino R. Laderas dated February 23, employment as a seafarer in any capacity. Evidently, more than
2011 is hereby MODIFIED as follows: 120 days had already lapsed form the time of his repatriation and
the filing of the complaint. He was subjected to continued medical
1) Complainant-Appellee is hereby awarded the sum of treatment and rehabilitation without any development.
US$89,100.00 or its equivalent in Philippine Peso at the time of
payment, representing his total and permanent disability benefits Suffering from such illness as a result of his accident on-board,
under the Collective Bargaining Agreement (CBA); and which illness has yet to be cured or medically resolved, private
respondent is rendered unfit to work and resume his duties as an
2) The award of attorney's fees is DELETED. able seaman, a job that requires heavy lifting and involves
strenuous tasks. Rightly so, the NLRC modified the Labor Arbiter
SO ORDERED.24 (Citations omitted) Decision, considering that private respondent deserves a Grade 1
disability rating having failed to obtain employment for more than
Respondent moved to reconsider, but in its April 30, 2012
120 days from his repatriation.
Resolution, the NLRC held its ground.
Emphatically, under the [POEA-SEC], two elements must concur
Ruling of the Court of Appeals
for an injury or illness to be compensable: First, that the injury or
illness must be work-related; and Second, that the work-related
Petitioners thus filed a Petition for Certiorari, docketed as CA-
injury or illness must have existed during the term of the
G.R. SP No. 125046, questioning the NLRC's pronouncements
seafarer's employment contract. Both elements are availing in the
and arguing that the award of permanent and total disability
present case as the injury sustained by private respondent had
benefits was unwarranted; that the NLRC should have limited
been a direct result of his work-related accident onboard and while
itself to determining which of the two medical opinions, that of the
on-duty as a seafarer.
company-designated physician or the independent doctor, should
prevail; and that mere incapacity to return to work after 120 days
So viewed, private respondent's impediment is deemed total and
does not automatically entitle respondent to a Grade 1 disability
permanent and thus warrants the award of disability benefits
rating, as his injury is specifically governed by the provisions of
amounting to US$89,100.00 in accordance with the prevailing
the POEA contract.
CBA between the parties. Petitioners' arguments being devoid of
factual and legal basis, there is no cogent reason to warrant the
On October 18, 2013, the CA issued the assailed Decision which
issuance of a writ of certiorari and to deviate from the settled rule
contains the following pronouncement:
that findings of facts of the NLRC are deemed binding and
In the case of floreta vs. Philippine Transmarine Carriers, Inc.,
conclusive upon the Court, when supported by substantial
the Supreme Court has applied the Labor Code concept of
evidence, as in the case at bench.
permanent total disability to Filipino seafarers in keeping with the
avowed policy of the State to give maximum aid and full protection
WHEREFORE, the foregoing considered, the present petition is
to labor, it holding that the notion of disability is intimately related
hereby DENIED md the assailed Decision dated 29 December
to the worker's capacity to earn, what is compensated being not his
2011 and Resolution dated 30 April2012 [are] AFFIRMED in toto.
injury or illness but his inability to work resulting in the
impairment of his earning capacity, hence, disability should be
SO ORDERED.25 (Citations omitted)
understood less on its medical significance but more on the loss of
earning capacity. Petitioners moved to consider, but the CA was unmoved. Hence,
the present Petition
Expounding on the matter, the Supreme Court has pronounced
that permanent total disability means disablement of an employee Issues
to earn wages in the same kind of work, or work of similar nature
that he was trained for or accustomed to perforn1, or any kind of Petitioners submit that -
work which a person of his mentality and attainment could do. It x x x THE COURT OF APPEALS COMMITTED SERIOUS
does not mean absolute helplessness. Verily, permanent disability ERROR WHEN IT HELD THAT RESPONDENT IS ENTITLED
has been defined as the inability of a worker to perforn1 his job for TO PERMANENT TOTAL DISABILITY BENEFITS,
more than 120 days, regardless of whether or not he loses the use CONSIDERING THAT:
of any part of his body. RESPONDENT IS NOT AUTOMATICALLY ENTITLED TO
TOTAL PERMANENT DISABILITY BENEFITS SIMPLY
 P a g e | 196

BECAUSE, THRU HIS OWN FAULT, HIS BACK CONDITION Our Ruling
WAS NOT RESOLVED AFTER ONE HUNDRED AND
TWENTY (120) DAYS. The Court grants the Petition in part.
'An employee's disability becomes permanent and total [only 1)]
RESPONDENT VIOLATED HIS OBLIGATIONS UNDER THE when so declared by the company-designated physician, or, [2)] in
POEA-SEC BECAUSE HE INEXPLICABLY ABANDONED HIS case of absence of such a declaration either of fitness or permanent
TREATMENT WITH THE COMPANY-DESIGNATED total disability, upon the lapse of the 120- or 240-day treatment
DOCTORS. periods, while the employee's disability continues and he is unable to
engage in gainful employment during such period, and the company-
IN THE ABSENCE OF A MEDICAL FINDING BY A THIRD designated physician fails to arrive at a definite assessment of the
DOCTOR, THE ASSESSMENT OF THE COMPANY- employee's fitness or disability.' The 'mere lapse of the 120-day
DESIGNATED ORTHOPEDIC SURGEON IS period itself does not automatically warrant the payment of
CONTROLLING.26 permanent total disability benefits.' 'If the 120 days initial period is
exceeded and no such declaration is made because the seafarer
Petitioners' Arguments
requires further medical attention, then the temporary total disability
period may be extended up to a maximum of 240 days, subject to the
Praying that the assailed CA pronouncements be set aside and
right of the employer to declare within this period that a permanent
respondent's labor complaint be dismissed, petitioners maintain in
partial or total disability already exists. The seaman may of course
their Petition and Reply27 that the respondent's inability to work
also be declared fit to work at any time such declaration is justified
for more than 120 days is not tantamount to permanent total
by his medical condition.'29
disability; that in fact, there was as yet no declaration with respect
to his fitness to work or permanent total disability, as he required For a little over 120 days, or from February 10, 2010 to June 16,
further medical treatment and yet he abandoned the same; that 2010, 126 days to be exact, respondent underwent treatment by the
instead of undergoing the required treatment, respondent company-designated physician. On June 16, 2010, he was partially
discontinued his medical visits to the company physician and thus diagnosed with "lumbosacral muscular spasm with mild spondylosis
prevented petitioners from resolving his condition; that by his own L3-L4;"30 the company physician also concluded that there was no
actions, respondent intentionally prevented his condition from compression fracture, and respondent was told to return for a
being cured and caused the aggravation thereof, if any, in express scheduled bone scan. However, instead of returning for further
violation of his POEA contract which requires him to submit diagnosis and treatment, respondent opted to secure the opinion of
himself to treatment by the company physician; that respondent an independent physician of his own choosing who, although
was finally diagnosed by the company-designated physician with a arriving at a finding of permanent total disability, nonetheless
Grade 10 disability rating, which diagnosis should prevail over required respondent to subject himself to further Bone Scan and
that of respondent's appointed physician, especially in the absence Electromyography and Nerve Conduction Velocity tests "to
of the required opinion from a third doctor chosen mutually by the determine the exact problem on his lumbar spine."31
parties; and, that respondent's claim for disability benefits is thus
limited to the Schedule of Disability Allowances under Section 32 Instead of heeding the recommendations of his own doctor,
of the POEA standard contract. respondent went on to file the subject labor complaint. In point of
law, respondent's filing of the case was premature.
Respondent's Arguments
The company-designated physician and Dr. Escutin are one in
In his Comment,28 respondent counters that as between the recommending that respondent undergo at least a bone scan to
diagnosis of the company physician and that of his appointed determine his current condition while undergoing treatment, thus
physician, Dr. Escutin, the latter prevails; that the evidence does indicating that respondent's condition needed further attention. In
not indicate that further medication or additional treatment was this regard, petitioners are correct in arguing that respondent
required for his condition, and as a matter of fact, no further abandoned treatment, as under the law and the POEA contract of the
medical treatment was advised for his case after June 16, 2010; parties, the company physician is given up to 240 days to treat him.
that there was no declaration of fitness for work by the company On the other hand, the fact that Dr. Escutin required the conduct of
physician after more than 120 days of treatment, his illness was further tests on respondent is an admission that his diagnosis of
not cured, and he could not return to work as a seaman on permanent total disability is incomplete and inconclusive, and thus
account of his injury; that petitioners' claim that he abandoned his unreliable. It can only corroborate the company-designated
ongoing treatment deserves no consideration, as in fact he was physician's finding that further tests and treatment are required.
never told of such further treatment after his last consultation on
June 16, 2010; that petitioners' claim of further required In New Filipino Maritime Agencies, Inc. v. Despabeladeras,32 this
treatment is a ploy to discredit him by precisely making it appear Court held that a seafarer is guilty of medical abandonment for his
that he refused to undergo treatment with the company physician; failure to complete his treatment before the lapse of the 240-day
that petitioners' claim that he called to inform them that he could period, which prevents the company physician from declaring him
not appear on July 16, 2010 for his scheduled bone scan is a lie; fit to work or assessing his disability. Thus:
and that the opinion of a third physician is not mandatory, the As recited earlier, upon Michael's return to the country, he
labor tribunals may simply determine which of the conflicting underwent medical treatment in accordance with the terms of the
medical opinions (company physician and independent physician) [POEA SEC]. Upon his repatriation x x x, he was given medical
should prevail based on the evidence and circumstances. attention supervised by x x x the company-designated physician. He
was later on endorsed to an orthopedic surgeon. The company-
 P a g e | 197

designated specialist recommended that he continue with his 2009 for disability benefits. And, it was only a day after its filing x x
physical therapy sessions. During his visit on February 10, 2010, he x that respondent requested from the company-designated doctor the
was required to return for a follow up checkup x x x. For unknown latter's assessment on his medical condition.
reasons, he failed to return on the said date.
Stated differently, respondent filed the Complaint within the 240-day
It should be noted that on February 10, 2010 when Michael last period while he was still under the care of the company-designated
visited the company-designated orthopedic surgeon, it had been 166 doctor. x x x
days since he was referred to the company-designated physician
upon his repatriation x x x. During this time, Michael was under Clearly, the Complaint was premature. Respondent has no cause of
temporary total disability inasmuch as the 240-day period provided action yet at the time of its filing as the company-designated doctor
under the aforecited Rules had not yet lapsed. The CA, therefore, has no opportunity to definitely assess his condition because he was
erred when it ruled that Michael's disability was permanent and total. still undergoing treatment; and the 240-day period had not lapsed. x
x x36
xxxx Nevertheless, respondent might have treated the company-
designated physician's June 16, 2010 temporary diagnosis as the
On the issue of abandonment, the Court agrees with petitioners' final assessment of his condition, which prompted him to secure the
stance that Michael was indeed guilty of medical abandonment for opinion of Dr. Escutin and thereafter file the case prematurely. For
his failure to complete his treatment even before the lapse of the 240 this he cannot be completely blamed; indeed, he might have
days period. Due to his willful discontinuance of medical treatment proceeded under the impression that he was being shortchanged.
with Dr. Cruz, the latter could not declare him fit to work or assess Given his position in the employment relation, his distrust for the
his disability. petitioners is not completely unwarranted.
Michael's claim that requiring him to await the medical assessment Consequently, respondent is entitled only to compensation
of Dr. Cruz would mean that his fate would unduly rest in the hands equivalent to or commensurate with his injury. In this regard, the
of the company doctor does not persuade. Worthy of note is that the Court finds the Labor Arbiter's findings to be correct and in point,
company designated physician is mandated under the law to issue a even with respect to his ruling on respondent's entitlement to
medical assessment within 240 days from the seafarer's repatriation. attorney's fees. As far as respondent is concerned, his work-related
It is, therefore, incorrect to conclude that a seafarer is at the mercy of condition was serious enough to require further medical care, yet it
the company doctor. could have been resolved if he had undergone the procedure
prescribed by the company-designated physician and his own
Thus, without any disability assessment from Dr. Cruz, Michael's appointed doctor. For his omissions, he is only entitled to disability
claim for disability compensation cannot prosper. Section 20(D) of benefits consistent with his injury suffered.
the POEA-SEC instructs that no compensation and benefits shall be
payable in respect of any injury, incapacity, disability or death of the WHEREFORE, the Petition is GRANTED IN PART. The assailed
seafarer resulting from his willful or criminal act or intentional October 18, 2013 Decision and January 28, 2014 Resolution of the
breach of his duties. Michael was duty-bound to complete his Court of Appeals in CA-G.R. SP No. 125046 are REVERSED and
medical treatment until declared fit to work or assessed with a SET ASIDE. The February 23, 2011 Decision of Labor Arbiter
permanent disability grading. It is undisputed that Michael did not Catalino R. Laderas is REINSTATED and AFFIRMED.
undergo further treatment. x x x [S]uch a refusal negated the
payment of disability benefits. SO ORDERED.
Michael's breach of his duties under the POEA-SEC was aggravated
by the fact [that] he filed his complaint for permanent total disability G.R. No. 159132             December 18, 2008
benefits while he was under the care of the company-designated
specialist and without waiting for the latter's assessment of his FE CAYAO-LASAM, petitioner,
condition. x x x33 (Citations omitted) vs.
Identical rulings were arrived at in Magsaysay Maritime SPOUSES CLARO and EDITHA RAMOLETE,
Corporation v. National Labor Relations Commission34 and, more respondents.*
recently, in Wallem Maritime Services, Inc. v. Quillao35 where this
ponente made the following pronouncement:
We agree with petitioners' contention that at the time of filing of the AUSTRIA-MARTINEZ, J.:
Complaint, respondent has no cause of action because the company-
designated physician has not yet issued an assessment on Before the Court is a Petition for Review on Certiorari under Rule
respondent's medical condition; moreover, the 240-day maximum 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner)
period for treatment has not yet lapsed. x x x seeking to annul the Decision1 dated July 4, 2003 of the Court of
Appeals (CA) in CA-G.R. SP No. 62206.
The records clearly show that respondent was still undergoing
treatment when he filed the complaint. On November 12, 2009, the The antecedent facts:
physiatrist even advised respondent to seek the opinion of an
orthopedic specialist. Respondent, however, did not heed the On July 28, 1994, respondent, three months pregnant Editha
advice[;] instead, he proceeded to file a Complaint on November 23, Ramolete (Editha) was brought to the Lorma Medical Center (LMC)
 P a g e | 198

in San Fernando, La Union due to vaginal bleeding. Upon advice of advised Editha to return for check-up on August 5, 1994, which the
petitioner relayed via telephone, Editha was admitted to the LMC on latter failed to do.
the same day. A pelvic sonogram2 was then conducted on Editha
revealing the fetus’ weak cardiac pulsation.3 The following day, Petitioner contended that it was Editha’s gross negligence and/or
Editha’s repeat pelvic sonogram4 showed that aside from the fetus’ omission in insisting to be discharged on July 31, 1994 against
weak cardiac pulsation, no fetal movement was also appreciated. doctor’s advice and her unjustified failure to return for check-up as
Due to persistent and profuse vaginal bleeding, petitioner advised directed by petitioner that contributed to her life-threatening
Editha to undergo a Dilatation and Curettage Procedure (D&C) or condition on September 16, 1994; that Editha’s hysterectomy was
"raspa." brought about by her very abnormal pregnancy known as placenta
increta, which was an extremely rare and very unusual case of
On July 30, 1994, petitioner performed the D&C procedure. Editha abdominal placental implantation. Petitioner argued that whether or
was discharged from the hospital the following day. not a D&C procedure was done by her or any other doctor, there
would be no difference at all because at any stage of gestation before
On September 16, 1994, Editha was once again brought at the LMC, term, the uterus would rupture just the same.
as she was suffering from vomiting and severe abdominal pains.
Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo On March 4, 1999, the Board of Medicine (the Board) of the PRC
and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that rendered a Decision,14 exonerating petitioner from the charges filed
there was a dead fetus in the latter’s womb. After, Editha underwent against her. The Board held:
laparotomy,5 she was found to have a massive intra-abdominal
hemorrhage and a ruptured uterus. Thus, Editha had to undergo a Based on the findings of the doctors who conducted the
procedure for hysterectomy6 and as a result, she has no more chance laparotomy on Editha, hers is a case of Ectopic Pregnancy
to bear a child. Interstitial. This type of ectopic pregnancy is one that is
being protected by the uterine muscles and manifestations
On November 7, 1994, Editha and her husband Claro Ramolete may take later than four (4) months and only attributes to
(respondents) filed a Complaint7 for Gross Negligence and two percent (2%) of ectopic pregnancy cases.
Malpractice against petitioner before the Professional Regulations
Commission (PRC). When complainant Editha was admitted at Lorma Medical
Center on July 28, 1994 due to vaginal bleeding, an ultra-
Respondents alleged that Editha’s hysterectomy was caused by sound was performed upon her and the result of the
petitioner’s unmitigated negligence and professional incompetence Sonogram Test reveals a morbid fetus but did not specify
in conducting the D&C procedure and the petitioner’s failure to where the fetus was located. Obstetricians will assume that
remove the fetus inside Editha’s womb.8 Among the alleged acts of the pregnancy is within the uterus unless so specified by the
negligence were: first, petitioner’s failure to check up, visit or Sonologist who conducted the ultra-sound. Respondent (Dr.
administer medication on Editha during her first day of confinement Lasam) cannot be faulted if she was not able to determine
at the LMC;9 second, petitioner recommended that a D&C procedure that complainant Editha is having an ectopic pregnancy
be performed on Editha without conducting any internal examination interstitial. The D&C conducted on Editha is necessary
prior to the procedure;10 third, petitioner immediately suggested a considering that her cervix is already open and so as to stop
D&C procedure instead of closely monitoring the state of pregnancy the profuse bleeding. Simple curettage cannot remove a
of Editha.11 fetus if the patient is having an ectopic pregnancy, since
ectopic pregnancy is pregnancy conceived outside the
In her Answer,12 petitioner denied the allegations of negligence and uterus and curettage is done only within the uterus.
incompetence with the following explanations: upon Editha’s Therefore, a more extensive operation needed in this case
confirmation that she would seek admission at the LMC, petitioner of pregnancy in order to remove the fetus.15
immediately called the hospital to anticipate the arrival of Editha and
ordered through the telephone the medicines Editha needed to take, Feeling aggrieved, respondents went to the PRC on appeal. On
which the nurses carried out; petitioner visited Editha on the November 22, 2000, the PRC rendered a Decision16 reversing the
morning of July 28, 1994 during her rounds; on July 29, 1994, she findings of the Board and revoking petitioner’s authority or license
performed an internal examination on Editha and she discovered that to practice her profession as a physician.17
the latter’s cervix was already open, thus, petitioner discussed the
possible D&C procedure, should the bleeding become more profuse; Petitioner brought the matter to the CA in a Petition for Review
on July 30 1994, she conducted another internal examination on under Rule 43 of the Rules of Court. Petitioner also dubbed her
Editha, which revealed that the latter’s cervix was still open; Editha petition as one for certiorari18 under Rule 65 of the Rules of Court.
persistently complained of her vaginal bleeding and her passing out
of some meaty mass in the process of urination and bowel In the Decision dated July 4, 2003, the CA held that the Petition for
movement; thus, petitioner advised Editha to undergo D&C Review under Rule 43 of the Rules of Court was an improper
procedure which the respondents consented to; petitioner was very remedy, as the enumeration of the quasi-judicial agencies in Rule 43
vocal in the operating room about not being able to see an abortus;13 is exclusive.19 PRC is not among the quasi-judicial bodies whose
taking the words of Editha to mean that she was passing out some judgment or final orders are subject of a petition for review to the
meaty mass and clotted blood, she assumed that the abortus must CA, thus, the petition for review of the PRC Decision, filed at the
have been expelled in the process of bleeding; it was Editha who CA, was improper. The CA further held that should the petition be
insisted that she wanted to be discharged; petitioner agreed, but she
 P a g e | 199

treated as a petition for certiorari under Rule 65, the same would 8. PRC COMMITTED AN EVEN GRAVER ABUSE OF
still be dismissed for being improper and premature. Citing Section DISCRETION IN TOTALLY DISREGARDING THE
2620 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, FINDING OF THE BOARD OF MEDICINE, WHICH
the CA held that the plain, speedy and adequate remedy under the HAD THE NECESSARY COMPETENCE AND
ordinary course of law which petitioner should have availed herself EXPERTISE TO ESTABLISH THE CAUSE OF
of was to appeal to the Office of the President.21 RESPONDENT EDITHA’S INJURY, AS WELL AS THE
TESTIMONY OF THE EXPERT WITNESS AUGUSTO
Hence, herein petition, assailing the decision of the CA on the MANALO, M.D. ;[and]
following grounds:
9. PRC COMMITTED GRAVE ABUSE OF
1. THE COURT OF APPEALS ERRED ON A DISCRETION IN MAKING CONCLUSIONS OF FACTS
QUESTION OF LAW IN HOLDING THAT THE THAT WERE NOT ONLY UNSUPPORTED BY
PROFESSIONAL REGULATION[S] COMMISSION EVIDENCE BUT WERE ACTUALLY CONTRARY TO
(PRC) WAS EXCLUDED AMONG THE QUASI- EVIDENCE ON RECORD.22
JUDICIAL AGENCIES CONTEMPLATED UNDER
RULE 43 OF THE RULES OF CIVIL PROCEDURE; The Court will first deal with the procedural issues.

2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS Petitioner claims that the law does not allow complainants to appeal
EXCLUDED FROM THE PURVIEW OF RULE 43 OF to the PRC from the decision of the Board. She invokes Article IV,
THE RULES OF CIVIL PROCEDURE, THE Section 35 of the Rules and Regulations Governing the Regulation
PETITIONER WAS NOT PRECLUDED FROM FILING and Practice of Professionals, which provides:
A PETITION FOR CERTIORARI WHERE THE
DECISION WAS ALSO ISSUED IN EXCESS OF OR Sec. 35. The respondent may appeal the decision of the
WITHOUT JURISDICTION, OR WHERE THE Board within thirty days from receipt thereof to the
DECISION WAS A PATENT NULLITY; Commission whose decision shall be final. Complainant,
when allowed by law, may interpose an appeal from the
3. HEREIN RESPONDENTS-SPOUSES ARE NOT Decision of the Board within the same period. (Emphasis
ALLOWED BY LAW TO APPEAL FROM THE supplied)
DECISION OF THE BOARD OF MEDICINE TO THE
PROFESSIONAL REGULATION[S] COMMISSION; Petitioner asserts that a careful reading of the above law indicates
that while the respondent, as a matter of right, may appeal the
4. THE COURT OF APPEALS COMMITTED GRAVE Decision of the Board to the Commission, the complainant may
ABUSE OF DISCRETION IN DENYING FOR interpose an appeal from the decision of the Board only when so
IMPROPER FORUM THE PETITION FOR allowed by law.23 Petitioner cited Section 26 of Republic Act No.
REVIEW/PETITION FOR CERTIORARI WITHOUT 2382 or "The Medical Act of 1959," to wit:
GOING OVER THE MERITS OF THE GROUNDS
RELIED UPON BY THE PETITIONER; Section 26. Appeal from judgment. The decision of the
Board of Medical Examiners (now Medical Board) shall
5. PRC’S GRAVE OMISSION TO AFFORD HEREIN automatically become final thirty days after the date of its
PETITONER A CHANCE TO BE HEARD ON APPEAL promulgation unless the respondent, during the same
IS A CLEAR VIOLATION OF HER CONSTITUTIONAL period, has appealed to the Commissioner of Civil Service
RIGHT TO DUE PROCESS AND HAS THE EFFECT OF (now Professional Regulations Commission) and later to
RENDERING THE JUDGMENT NULL AND VOID; the Office of the President of the Philippines. If the final
decision is not satisfactory, the respondent may ask for a
6. COROLLARY TO THE FOURTH ASSIGNED review of the case, or may file in court a petition for
ERROR, PRC COMMITTED GRAVE ABUSE OF certiorari.
DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, IN ACCEPTING AND CONSIDERING Petitioner posits that the reason why the Medical Act of 1959 allows
THE MEMORANDUM ON APPEAL WITHOUT PROOF only the respondent in an administrative case to file an appeal with
OF SERVICE TO HEREIN PETITIONER, AND IN the Commission while the complainant is not allowed to do so is
VIOLATION OF ART. IV, SEC. 35 OF THE RULES double jeopardy. Petitioner is of the belief that the revocation of
AND REGULATIONS GOVERNING THE license to practice a profession is penal in nature.24
REGULATION AND PRACTICE OF PROFESSIONALS;
The Court does not agree.
7. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN REVOKING PETITIONER’S LICENSE For one, the principle of double jeopardy finds no application in
TO PRACTICE MEDICINE WITHOUT AN EXPERT administrative cases. Double jeopardy attaches only: (1) upon a valid
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO indictment; (2) before a competent court; (3) after arraignment; (4)
THE CAUSE OF RESPONDENT EDITHAT [SIC] when a valid plea has been entered; and (5) when the defendant was
RAMOLETE’S INJURY; acquitted or convicted, or the case was dismissed or otherwise
 P a g e | 200

terminated without the express consent of the accused. 25 These contends that a quasi-judicial body is not excluded from the purview
elements were not present in the proceedings before the Board of of Rule 43 just because it is not mentioned therein.34
Medicine, as the proceedings involved in the instant case were
administrative and not criminal in nature. The Court has already held On this point, the Court agrees with the petitioner.
that double jeopardy does not lie in administrative cases.26
Sec. 1, Rule 43 of the Rules of Court provides:
Moreover, Section 35 of the Rules and Regulations Governing the
Regulation and Practice of Professionals cited by petitioner was Section 1. Scope. - This Rule shall apply to appeals from
subsequently amended to read: judgments or final orders of the Court of Tax Appeals, and
from awards, judgments, final orders or resolutions of
Sec. 35. The complainant/respondent may appeal the or authorized by any quasi-judicial agency in the
order, the resolution or the decision of the Board within exercise of its quasi-judicial functions. Among these
thirty (30) days from receipt thereof to the Commission agencies are the Civil Service Commission, Central Board
whose decision shall be final and executory. Interlocutory of Assessment Appeals, Securities and Exchange
order shall not be appealable to the Commission. (Amended Commission, Office of the President, Land Registration
by Res. 174, Series of 1990).27 (Emphasis supplied) Authority, Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and Technology
Whatever doubt was created by the previous provision was settled Transfer, National Electrification Administration, Energy
with said amendment. It is axiomatic that the right to appeal is not a Regulatory Board, National Telecommunications
natural right or a part of due process, but a mere statutory privilege Commission, Department of Agrarian Reform under
that may be exercised only in the manner prescribed by law.28 In this Republic Act No. 6657, Government Service Insurance
case, the clear intent of the amendment is to render the right to System, Employees Compensation Commission,
appeal from a decision of the Board available to both complainants Agricultural Inventions Board, Insurance Commission,
and respondents. Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration
Such conclusion is bolstered by the fact that in 2006, the PRC issued Commission, and voluntary arbitrators authorized by law.
Resolution No. 06-342(A), or the New Rules of Procedure in (Emphasis supplied)
Administrative Investigations in the Professional Regulations
Commission and the Professional Regulatory Boards, which Indeed, the PRC is not expressly mentioned as one of the agencies
provides for the method of appeal, to wit: which are expressly enumerated under Section 1, Rule 43 of the
Rules of Court. However, its absence from the enumeration does not,
Sec. 1. Appeal; Period Non-Extendible.- The decision, by this fact alone, imply its exclusion from the coverage of said
35
order or resolution of the Board shall be final and executory Rule. The Rule expressly provides that it should be applied to
after the lapse of fifteen (15) days from receipt of the appeals from awards, judgments final orders or resolutions of any
decision, order or resolution without an appeal being quasi-judicial agency in the exercise of its quasi-judicial functions.
perfected or taken by either the respondent or the The phrase "among these agencies" confirms that the enumeration
36
complainant. A party aggrieved by the decision, order or made in the Rule is not exclusive to the agencies therein listed.
resolution may file a notice of appeal from the decision,
order or resolution of the Board to the Commission Specifically, the Court, in Yang v. Court of Appeals,37 ruled that
within fifteen (15) days from receipt thereof, and serving Batas Pambansa (B.P.) Blg. 12938 conferred upon the CA exclusive
upon the adverse party a notice of appeal together with the appellate jurisdiction over appeals from decisions of the PRC. The
appellant’s brief or memorandum on appeal, and paying the Court held:
appeal and legal research fees. x x x29
The law has since been changed, however, at least in the
The above-stated provision does not qualify whether only the matter of the particular court to which appeals from the
complainant or respondent may file an appeal; rather, the new rules Commission should be taken. On August 14, 1981, Batas
provide that "a party aggrieved" may file a notice of appeal. Thus, Pambansa Bilang 129 became effective and in its Section
either the complainant or the respondent who has been aggrieved by 29, conferred on the Court of Appeals "exclusive appellate
the decision, order or resolution of the Board may appeal to the jurisdiction over all final judgments, decisions, resolutions,
Commission. It is an elementary rule that when the law speaks in orders or awards of Regional Trial Courts and quasi-
clear and categorical language, there is no need, in the absence of judicial agencies, instrumentalities, boards or commissions
legislative intent to the contrary, for any interpretation.30 Words and except those falling under the appellate jurisdiction of the
phrases used in the statute should be given their plain, ordinary, and Supreme Court. x x x." In virtue of BP 129, appeals from
common usage or meaning.31 the Professional Regulations Commission are now
exclusively cognizable by the Court of Appeals.39
Petitioner also submits that appeals from the decisions of the PRC (Emphasis supplied)
should be with the CA, as Rule 4332 of the Rules of Court was
precisely formulated and adopted to provide for a uniform rule of Clearly, the enactment of B.P. Blg. 129, the precursor of the present
appellate procedure for quasi-judicial agencies.33 Petitioner further Rules of Civil Procedure,40 lodged with the CA such jurisdiction
over the appeals of decisions made by the PRC.
 P a g e | 201

Anent the substantive merits of the case, petitioner questions the which she found herself in on the second admission. Will
PRC decision for being without an expert testimony to support its you please tell us whether that is true or not?
conclusion and to establish the cause of Editha’s injury. Petitioner
avers that in cases of medical malpractice, expert testimony is A:     Yah, I do not think so for two reasons. One, as I
necessary to support the conclusion as to the cause of the injury.41 have said earlier, the instrument cannot reach the site of the
pregnancy, for it to further push the pregnancy outside the
Medical malpractice is a particular form of negligence which uterus. And, No. 2, I was thinking a while ago about
consists in the failure of a physician or surgeon to apply to his another reason- well, why I don’t think so, because it is the
practice of medicine that degree of care and skill which is ordinarily triggering factor for the rupture, it could have–the rupture
employed by the profession generally, under similar conditions, and could have occurred much earlier, right after the D&C or a
in like surrounding circumstances.42 In order to successfully pursue few days after the D&C.
such a claim, a patient must prove that the physician or surgeon
either failed to do something which a reasonably prudent physician Q:     In this particular case, doctor, the rupture occurred to
or surgeon would not have done, and that the failure or action caused have happened minutes prior to the hysterectomy or right
injury to the patient.43 upon admission on September 15, 1994 which is about 1 ½
months after the patient was discharged, after the D&C was
There are four elements involved in medical negligence cases: duty, conducted. Would you tell us whether there is any relation
breach, injury and proximate causation.44 at all of the D&C and the rupture in this particular instance?

A physician-patient relationship was created when Editha employed A:     I don’t think so for the two reasons that I have just
the services of the petitioner. As Editha’s physician, petitioner was mentioned- that it would not be possible for the
duty-bound to use at least the same level of care that any reasonably instrument to reach the site of pregnancy. And, No. 2, if
competent doctor would use to treat a condition under the same it is because of the D&C that rupture could have occurred
circumstances.45 The breach of these professional duties of skill and earlier.52 (Emphases supplied)
care, or their improper performance by a physician surgeon, whereby
the patient is injured in body or in health, constitutes actionable Clearly, from the testimony of the expert witness and the reasons
malpractice.46 As to this aspect of medical malpractice, the given by him, it is evident that the D&C procedure was not the
determination of the reasonable level of care and the breach thereof, proximate cause of the rupture of Editha’s uterus.
expert testimony is essential.47 Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the During his cross-examination, Dr. Manalo testified on how he would
light of scientific knowledge, it has been recognized that expert have addressed Editha’s condition should he be placed in a similar
testimony is usually necessary to support the conclusion as to circumstance as the petitioner. He stated:
causation.48
Atty. Ragonton:
In the present case, respondents did not present any expert testimony
to support their claim that petitioner failed to do something which a
reasonably prudent physician or surgeon would have done. Q:     Doctor, as a practicing OB-Gyne, when do you
consider that you have done a good, correct and ideal
dilatation and curettage procedure?
Petitioner, on the other hand, presented the testimony of Dr. Augusto
M. Manalo, who was clearly an expert on the subject.
A:     Well, if the patient recovers. If the patient gets well.
Because even after the procedure, even after the procedure
Generally, to qualify as an expert witness, one must have acquired you may feel that you have scraped everything, the patient
special knowledge of the subject matter about which he or she is to stops bleeding, she feels well, I think you should still have
testify, either by the study of recognized authorities on the subject or some reservations, and wait a little more time.
by practical experience.49
Q:     If you were the OB-Gyne who performed the
Dr. Manalo specializes in gynecology and obstetrics, authored and procedure on patient Editha Ramolete, would it be your
co-authored various publications on the subject, and is a professor at standard practice to check the fetal parts or fetal tissues that
the University of the Philippines.50 According to him, his diagnosis were allegedly removed?
of Editha’s case was "Ectopic Pregnancy Interstitial (also referred to
as Cornual), Ruptured."51 In stating that the D&C procedure was not
the proximate cause of the rupture of Editha’s uterus resulting in her A:     From what I have removed, yes. But in this particular
hysterectomy, Dr. Manalo testified as follows: case, I think it was assumed that it was part of the meaty
mass which was expelled at the time she was urinating and
flushed in the toilet. So there’s no way.
Atty. Hidalgo:
Q:     There was [sic] some portions of the fetal parts that
Q:     Doctor, we want to be clarified on this matter. The were removed?
complainant had testified here that the D&C was the
proximate cause of the rupture of the uterus. The condition
 P a g e | 202

A:     No, it was described as scanty scraping if I remember Art. 2179. When the plaintiff’s own negligence was the
it right–scanty. immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only
Q:     And you would not mind checking those scant or contributory, the immediate and proximate cause of the
those little parts that were removed? injury being the defendant’s lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the
A:     Well, the fact that it was described means, I damages to be awarded.
assume that it was checked, ‘no. It was described as
scanty and the color also, I think was described. Because it Proximate cause has been defined as that which, in natural and
would be very unusual, even improbable that it would continuous sequence, unbroken by any efficient intervening cause,
not be examined, because when you scrape, the produces injury, and without which the result would not have
specimens are right there before your eyes. It’s in front occurred.55 An injury or damage is proximately caused by an act or a
of you. You can touch it. In fact, some of them will stick failure to act, whenever it appears from the evidence in the case that
to the instrument and therefore to peel it off from the the act or omission played a substantial part in bringing about or
instrument, you have to touch them. So, automatically actually causing the injury or damage; and that the injury or damage
they are examined closely. was either a direct result or a reasonably probable consequence of
the act or omission.56
Q:     As a matter of fact, doctor, you also give telephone
orders to your patients through telephone? In the present case, the Court notes the findings of the Board of
Medicine:
A:     Yes, yes, we do that, especially here in Manila
because you know, sometimes a doctor can also be tied-up When complainant was discharged on July 31, 1994, herein
somewhere and if you have to wait until he arrive at a respondent advised her to return on August 4, 1994 or
certain place before you give the order, then it would be a four (4) days after the D&C. This advise was clear in
lot of time wasted. Because if you know your patient, if you complainant’s Discharge Sheet. However, complainant
have handled your patient, some of the symptoms you can failed to do so. This being the case, the chain of continuity
interpret that comes with practice. And, I see no reason for as required in order that the doctrine of proximate cause can
not allowing telephone orders unless it is the first time be validly invoked was interrupted. Had she returned, the
that you will be encountering the patient. That you have respondent could have examined her thoroughly.57 x x x
no idea what the problem is. (Emphases supplied)

Q:     But, doctor, do you discharge patients without seeing Also, in the testimony of Dr. Manalo, he stated further that assuming
them? that there was in fact a misdiagnosis, the same would have been
rectified if Editha followed the petitioner’s order to return for a
A:     Sometimes yes, depending on how familiar I am with check-up on August 4, 1994. Dr. Manalo stated:
the patient. We are on the question of telephone orders. I
am not saying that that is the idle [sic] thing to do, but I Granting that the obstetrician-gynecologist has been
think the reality of present day practice somehow misled (justifiably) up to thus point that there would
justifies telephone orders. I have patients whom I have have been ample opportunity to rectify the
justified and then all of a sudden, late in the afternoon or misdiagnosis, had the patient returned, as instructed for
late in the evening, would suddenly call they have decided her follow-up evaluation. It was one and a half months
that they will go home inasmuch as they anticipated that I later that the patient sought consultation with another
will discharge them the following day. So, I just call and doctor. The continued growth of an ectopic pregnancy,
ask our resident on duty or the nurse to allow them to go until its eventual rupture, is a dynamic process. Much
because I have seen that patient and I think I have full grasp change in physical findings could be expected in 1 ½
of her problems. So, that’s when I make this telephone months, including the emergence of suggestive ones.58
orders. And, of course before giving that order I ask about
how she feels.53 (Emphases supplied) It is undisputed that Editha did not return for a follow-up evaluation,
in defiance of the petitioner’s advise. Editha omitted the diligence
From the foregoing testimony, it is clear that the D&C procedure required by the circumstances which could have avoided the injury.
was conducted in accordance with the standard practice, with the The omission in not returning for a follow-up evaluation played a
same level of care that any reasonably competent doctor would use substantial part in bringing about Editha’s own injury. Had Editha
to treat a condition under the same circumstances, and that there was returned, petitioner could have conducted the proper medical tests
nothing irregular in the way the petitioner dealt with Editha. and procedure necessary to determine Editha’s health condition and
applied the corresponding treatment which could have prevented the
Medical malpractice, in our jurisdiction, is often brought as a civil rupture of Editha’s uterus. The D&C procedure having been
54
action for damages under Article 2176 of the Civil Code. The conducted in accordance with the standard medical practice, it is
defenses in an action for damages, provided for under Article 2179 clear that Editha’s omission was the proximate cause of her own
of the Civil Code are: injury and not merely a contributory negligence on her part.
 P a g e | 203

Contributory negligence is the act or omission amounting to want of of Medicine dated March 4, 1999 exonerating petitioner is
ordinary care on the part of the person injured, which, concurring AFFIRMED. No pronouncement as to costs.
with the defendant’s negligence, is the proximate cause of the
injury.59 Difficulty seems to be apprehended in deciding which acts SO ORDERED.
of the injured party shall be considered immediate causes of the
accident.60 Where the immediate cause of an accident resulting in an
injury is the plaintiff’s own act, which contributed to the principal Karen McCAIN, Plaintiff and
occurrence as one of its determining factors, he cannot recover
damages for the injury.61 Again, based on the evidence presented Appellant,
in the present case under review, in which no negligence can be
attributed to the petitioner, the immediate cause of the accident
v.
resulting in Editha’s injury was her own omission when she did John BATSON, M.D., Defendant and
not return for a follow-up check up, in defiance of petitioner’s
orders. The immediate cause of Editha’s injury was her own act; Respondent.
thus, she cannot recover damages from the injury. No. 88-134.

Lastly, petitioner asserts that her right to due process was violated Supreme Court of Montana.
because she was never informed by either respondents or by the PRC
that an appeal was pending before the PRC.62 Petitioner claims that a
Decided August 18, 1988.
verification with the records section of the PRC revealed that on
April 15, 1999, respondents filed a Memorandum on Appeal before Submitted on Briefs June 30, 1988.
the PRC, which did not attach the actual registry receipt but was
merely indicated therein.63
James J. Screnar, Nash, Guenther, Zimmer & Screnar, Bozeman, for
plaintiff and appellant.
Respondents, on the other hand avers that if the original registry
receipt was not attached to the Memorandum on Appeal, PRC would
Richard F. Cebull, Anderson, Brown Law Firm, Billings, for
not have entertained the appeal or accepted such pleading for lack of
64 defendant and respondent.
notice or proof of service on the other party. Also, the registry
receipt could not be appended to the copy furnished to petitioner’s
former counsel, because the registry receipt was already appended to HARRISON, Justice.
the original copy of the Memorandum of Appeal filed with PRC.65
This is an appeal of summary judgment granted in favor of
It is a well-settled rule that when service of notice is an issue, the defendant John Batson, M.D. Plaintiff/appellant Karen McCain
rule is that the person alleging that the notice was served must prove (McCain) brought this action in the District Court of the Eighth
the fact of service. The burden of proving notice rests upon the party Judicial District, Gallatin County, Montana, the Honorable Joseph B.
asserting its existence.66 In the present case, respondents did not Gary presiding. McCain sought to recover damages for the negligent
present any proof that petitioner was served a copy of the treatment of her injuries by the defendant/respondent, John Batson,
Memorandum on Appeal. Thus, respondents were not able to satisfy M.D. (Dr. Batson). Dr. Batson sought summary judgment by
the burden of proving that they had in fact informed the petitioner of invoking immunity of the Montana Good Samaritan Statute § 27-1-
the appeal proceedings before the PRC. 714, MCA. On February 4, 1988 the District Court granted Dr.
Batson's motion for summary judgment. McCain now appeals.
In EDI-Staffbuilders International, Inc. v. National Labor Relations
Commission,67 in which the National Labor Relations Commission McCain and two friends, Sherry Warner (Warner) and Rosemary
failed to order the private respondent to furnish the petitioner a copy Checketts, (Checketts) spent a weekend in West Yellowstone,
of the Appeal Memorandum, the Court held that said failure Montana, arriving the morning of September 25, 1982, from Ogden,
deprived the petitioner of procedural due process guaranteed by the Utah. They planned to stay with Warner in her condominium. That
Constitution, which could have served as basis for the nullification evening, after preparing and eating supper at home, the three friends
of the proceedings in the appeal. The same holds true in the case at decided to go into the town of West Yellowstone. The three decided
bar. The Court finds that the failure of the respondents to furnish the to walk into town as Warner's truck battery was dead. The
petitioner a copy of the Memorandum of Appeal submitted to the condominium was not far from town so they walked to the nearby
PRC constitutes a violation of due process. Thus, the proceedings Stagecoach Inn. After spending some time at the Inn, the women
before the PRC were null and void. became separated and about 11:00 p.m. McCain decided to return
alone to the condominium.
All told, doctors are protected by a special rule of law. They are not
guarantors of care. They are not insurers against mishaps or unusual McCain was unfamiliar with the area and while walking back in the
consequences68 specially so if the patient herself did not exercise the dark fell into an eight-foot deep excavation pit. The pit contained
proper diligence required to avoid the injury. rebar set in concrete at six inch intervals. As a result of the fall she
severely *726 impaled her upper left leg on a piece of rebar. After
extracting herself off the rebar, McCain crawled out of the pit and
WHEREFORE, the petition is GRANTED. The assailed Decision
crawled to a lighted doorway of a nearby condominium. McCain
of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206
rapped on the door of a condominium occupied by Dr. James
is hereby REVERSED and SET ASIDE. The Decision of the Board
 P a g e | 204

Grindley, a Bozeman radiologist, and his wife. Mrs. Grindley night at the Warner condominium and planned on returning to
answered the knock on the door. After McCain told Mrs. Grindley Ogden later that morning/early afternoon via Ashton, Idaho.
about her accident and injury, Dr. Grindley went to the Stagecoach
Inn to retrieve her two friends. Throughout this time, Dr. Grindley Dr. Batson testified that later that morning about 11:00 a.m., he
did not mention he was a physician and McCain remained on the returned to check on the three women. He found them still packing
patio or lawn outside of the condominium. Dr. Grindley is a and preparing to return to Ogden. Dr. Batson said he advised them
radiologist with extensive surgical and emergency room experience. again that *727 his suturing of the wound was a first-aid type
He did not initially examine McCain's injury, and in a deposition Dr. procedure and it was necessary that they go to a hospital and have
Grindley admitted that he did not have any medical equipment at the the wound properly treated.
condominium.
According to the deposition of Checketts, they did stop at the
McCain's friends returned with Dr. Grindley and attempted to assist Ashton, Idaho hospital where they got some pain medication and
her. Warner, a surgical assistant had gotten her box of medical antibiotics which served as treatment until McCain returned to
supplies and removed McCain's pant-leg with a pair of bandage Ogden. They then drove on into Ogden arriving at approximately
scissors. At that time Dr. Grindley informed them that he was a 7:00 p.m. and took McCain to her apartment where it was their
physician. Dr. Grindley examined the wound and advised all present understanding that McCain would go to the hospital and see a doctor
that while technically he could repair the wound, he had no desire to the next morning. However, McCain did not go to the hospital or see
do so without being able to "debride it and clean it." a doctor until about one week later. By this time her wound had
become infected and required considerable surgery and medical
At deposition Dr. Grindley testified he then offered to drive McCain treatment.
and her friends to the nearest hospital in Ashton, Idaho. They refused
his offer and informed Dr. Grindley that they believed there was a On September 25, 1985, three years to the date of the injury, Dr.
doctor staying in town who could help them and that if they needed Batson was sued by McCain for suturing the wound without
Dr. Grindley's services later, they would contact him. adequate debriding, or cleansing of the contaminated wound and for
failing to inform anyone that the procedures that he followed were
Dr. Grindley further testified that at that time the wound may have not final procedures. In other words, McCain claims he failed to
"been bleeding a tiny bit ... and that her panty hose seemed to be inform her that the wound would have to be opened up, recleansed,
holding the tissues all in good position so that it was minimizing any debrided, and resutered. McCain alleges that this is a case of
bleeding." McCain testified that at that time she had little pain and malpractice which has caused her serious injury.
the leg was "dead, numb, dead." After taking McCain back to
Warner's condominium, and some three hours after the accident, This case was presented to the District Court on depositions of
Warner was able to locate where defendant/respondent Dr. Batson Sherry Clarey Warner, Karen McCain (plaintiff and appellant),
was staying. Dr. Batson got up out of bed, left the condominium Rosemary Checketts, Dr. Wesley G. Harline, Dr. Lee J. Malan (a
where he was staying and agreed to come to the Warner surgeon who later operated on her at Ogden, Utah), Dr. John Batson
condominium to see what could be done. Dr. Batson testified that (defendant and respondent), and Dr. James S. Grindley (the
McCain was lying on a couch and that when he examined the wound radiologist who first saw the injured McCane at his door). Based on
he could see considerable dirt and mud in the wound. With the help the information contained in the depositions, the District Court
of Warner and her surgical kit which contained instruments, suture, granted Dr. Batson's motion for summary judgment. Attached to said
IV solutions, and other items that could be used to clean the wound, summary judgment was a memorandum of Judge Joseph Gary
Dr. Batson debrided the wound as best he could. He then loosely concerning the reasons for his granting of summary judgment.
sutured the wound and dressed it with bandages from the medical
kit. All of this was done under the light of a lamp in the Warner Several questions are presented for our consideration:
condominium.
1. Did the District Court improperly find that the provisions of the
Dr. Grindley testified at deposition that he informed all three women Montana Good Samaritan Statute, § 27-1-714, MCA, were
soon after the accident that the wound had to be treated at a hospital applicable to an instance where the negligent care rendered was
and under a general anesthesia and that the wound needed to be remote in time and location to the scene of the accident or
treated surgically. Dr. Batson's evaluation of the injury mirrored Dr. emergency, and was otherwise without the purpose of the act?
Grindley's that this was not an emergency situation but that McCain
should go to a hospital as soon as possible. Dr. Batson informed the
women that he would call the hospital in Ashton, Idaho and order 2. Did the District Court improperly usurp the function of the jury by
pain and antibiotic medication and a tetanus shot to be available to resolving questions of fact in its grant of summary judgment?
McCain the next morning.
The first issue concerns the Montana Good Samaritan Statute, § 27-
It should be noted that the reason McCain did not immediately go to 1-714, MCA, which reads:
a hospital was that the ambulance at West Yellowstone was not
available as it had taken someone to Bozeman, Montana, just before (1) Any person licensed as a physician and surgeon under the laws
she was injured and would not return until the next morning. As of the state of Montana, any volunteer firefighter or officer of any
previously noted, the truck used by the parties to travel to West nonprofit volunteer fire company, or any other person who in good
Yellowstone had a dead battery but would be repaired by the next faith renders emergency care or assistance without compensation
morning. As the hour was very late, the three spent the rest of the except as provided in subsection (2) at the scene of an emergency or
 P a g e | 205

accident is not liable for any civil damages for acts or omissions The District Court noted the problem here was not that there were
other than damages occasioned by gross negligence or by willful or differing versions of the facts but that the facts were not ultimately
wanton acts or omissions by such person in rendering such pertinent to the decision. Only two of the depositions indicate a fact
emergency care or assistance. variance. One is the deposition of the appellant, McCain, which is to
say the least self-serving; second is the deposition of Dr. Grindley
(2) Subsection (1) includes a person properly trained under the laws who testified that he disagreed with the decision of Dr. Batson in
of this state who operates an ambulance to and from the scene of an suturing the wound. Dr. Grindley added that the manner of Dr.
emergency or renders emergency medical treatment on a volunteer Batson's suturing indicated to him some permanence of treatment.
basis so long as the total reimbursement received for such volunteer However, on cross-examination it should be noted that it was Dr.
services does not exceed 25% of his gross annual income or $3,000 a Grindley's opinion that there was neither gross negligence nor gross
calendar year, whichever is greater. malpractice in this. During the cross-examination Dr. Grindley was
asked a number of questions which are illustrative of his position.
(3) If a nonprofit subscription fire company refuses to fight a fire on
nonsubscriber property, such refusal does not constitute gross Q. I get the impression that your biggest criticism is the fact that he
negligence or willful or wanton act or omission. sutured it.

A. Yes. I just don't know what the need for it was, you know, if he
According to the legislative history of § 27-1-714, MCA, (Good
was intending for her to go to the hospital right away and having it,
Samaritan Statute) it was passed by the Legislature in 1963,
amended by § 1, Chapter 390, Laws of Montana 1979, and § 1, you know, treated further.
Chapter 330, Law of Montana 1985, and § 1, Chapter 133, Laws of Q. Now do you know what gross negligence is on the part of a
Montana 1987. Reference is made to the legislative history of the
doctor as opposed to ordinary malpractice or ordinary negligence?
Good Samaritan Statute because this is a first *728 impression case
in this state on the interpretation of the Good Samaritan Statute. .....

This Court has considered appellant McCain's initial brief and reply THE WITNESS: No, I guess I really couldn't give you a real good
brief and her argument appears to be that the Good Samaritan Statute definition of that. I imagine it's where you had some idea maybe that
has no application to her situation. McCain alleges that Dr. Batson you were operating out of the boundaries that you should be
was not a good samaritan and recognizes that the Good Samaritan operating in or working in as a physician.
Statute provides immunity from his malpractice. McCain first argues
that a physician must demonstrate that he is a member of a protected BY MR. CEBULL [respondent's attorney]:
class. Dr. Batson was not a licensed physician in the state of
Q. Well are you critical of anything that Dr. Batson did other than
Montana, although he is licensed to practice in Wyoming and Idaho.
McCain argues he is, therefore, any person within the meaning of the suturing the wound?
statute. While she agrees with the fact that the doctor here is A. I'm not sure, you know, really what he did. You've told me what
protected under the act, she alleges that immunity only attaches to
he did and, *729 no, I couldn't say that I could be critical because I
malpractice which is committed at the scene of the accident or
really don't know what else he did. I haven't read those depositions
emergency.
or anything so I don't know.
She argues that after falling into the excavation pit, McCain crawled Q. But you are critical of the suturing, right?
to Dr. Grindley's condominium and she was later carried to Warner's
condominium. Therefore Dr. Batson's care, such as it was, was too A. Right. I really just don't know why you would put sutures in and
remote in time and location to the scene of the accident. She alleges then send someone off to the emergency room to have the wound
with this result Dr. Batson could not demonstrate that this was an treated further.
"emergency" situation. McCain further argues that Dr. Batson's
negligent care was performed when he made a "housecall" and he Q. And then as I understand it, you arrived at this opinion, or you
did not happen upon an emergency. McCain argues that because Dr. arrived at this criticism of Dr. Batson for him placing the sutures in
Batson's negligent care was not during an emergency situation, the wound before you came here today, didn't you?
though her injuries were serious, they were not life threatening and
therefore the best course of action would have been to postpone care A. Yes.
until she reached a hospital.
Q. Okay. Now in your opinion, was the placement of those sutures in
the wound by Dr. Batson gross negligence?
We, as the District Court did, have difficulty with this argument. The
central question presented to the District Court and one which is A. I don't know where he placed them. Do you mean just putting
subject to our review is whether the Good Samaritan Statute applies. them in there?
We find, as the District Court did, that it does. Thus, the standard of
review is gross negligence and willful or wanton acts or omissions Q. I mean just the fact that he sutured the wound. That's my
rather than ordinary negligence — medical malpractice. We agree understanding of your criticism of Dr. Batson.
with the District Court's finding that after reviewing all of the
deposition testimony, there is no evidence whatsoever that there was A. I don't know that I would call it gross negligence, but it's just —
such a serious level of negligence exhibited by Dr. Batson to warrant it's not the customary thing that a physician would do in treating —
any action in this case. giving first aid to a wound, in other words.
 P a g e | 206

Q. Well, generally, you know that if a physician violates an A. From your description of gross negligence, I would probably say
acceptable standard of care, that's malpractice, negligence, you know no. You see, I might change my mind. You've made a lot of this
that, don't you? hypothetical and you said that if he had all of the equipment
available, if everything was in that box *730 and he had some other
A. Uh huh. things available, you know, could he have done it. And I said yes
Q. Okay. And I get the impression that you are saying that Dr. but, you know, it was my opinion that I was not about to sew up that
Batson's suturing this wound was a violation of an acceptable kind of a wound, you know, with the equipment I could see in the
standard of care. box there and feel like I was doing a service to the patient.

A. I would think so. I think if he intended to — had thought that he Dr. Grindley later testified in deposition:
had debrided it and cleaned it out thoroughly and had done the
primary care of the wound and sutured it then, I wouldn't have much Q. Well, apparently before today you had formulated an opinion that
argument with that. But from what you tell me, where he puts just a Dr. Batson had committed at least ordinary malpractice, ordinary
few sutures in it and then sent her off to the emergency room to have negligence, right?
it further treated, I say why? Why subject a patient to sticking them
with a needle and whatever you do to put sutures in just to have A. I wouldn't say that. I just think he's braver than I was to try to —
them taken out in an hour or so, so it can be cleaned out? you know, if he was going to try to do primary care of that wound
there in some condominium or in his wherever he was staying, you
Q. Well, what have you been told about whether this was temporary know, he was braver than I was to attack that kind of situation
or permanent, final suturing? without what I would like to have available, you know, to do it, and
A. Well, you just alluded to it a while ago. if he was doing it just kind of as a first aid thing, then I really have
no idea why he would put sutures in the patient's leg.
Q. I know, but have you been told anything before that?
When questioned later regarding deposition testimony from
A. I'm not sure that I have. McCain's treating physicians in Utah, one being a plastic surgeon
Q. Well, if Dr. Batson had intended this to be a final repair job and and the other being a general practitioner, Dr. Grindley answered as
follows:
he had debrided it and cleansed it, at least in his judgment as good as
he could, would the fact that an infection occurred later on indicate
to you that he committed malpractice? Q. Now these physicians down in Utah, their depositions have been
taken — the one a plastic surgeon and another I'm not really sure
A. No. Because a certain percentage of wounds, like I said, would what his specialty was, but you don't know what they have said
get infected regardless of how thorough a job you do of cleaning about this?
them.
A. No, I don't.
Q. Even if they are done in a hospital in an OR suite with general
anesthesia and everything, right? Q. If they said that, in their opinion, Dr. Batson didn't commit
malpractice in any way, you would disagree with them then, I guess.
A. Right.
A. I couldn't really — you know, it just comes back to the same
Q. Well, in your opinion, if this was a temporary suturing job by Dr. thing, you know, I don't know actually what he did do, I didn't see
Batson, did that, in your opinion, constitute gross negligence, gross what he did work with, whether he was doing a primary closure with
malpractice? it. And if I could see what he had used and if I felt it was
appropriate, then I would say, you know, it probably was appropriate
A. Well, you see you really haven't told me what gross malpractice treatment for her. But, you know, just to put stitches into a wound
is yet or gross negligence. like this and send someone off to the hospital to have it further
Q. Well, it's a heck of a lot worse than ordinary malpractice. repaired, I just don't think that's customary practice.

A. I guess in my opinion I still would say — I would say it's what When asked if he offered to treat McCain's wound, Dr. Grindley
most people, most physicians would not do that if they expected the stated:
patient, within an hour or so, to be at a facility where they would
have it done and so why do it? No. Just like I said earlier, I just told her that I technically could
repair the wound with what she had there [Warner's medical kit], but
Q. Okay.
that I just felt that I would not want to do it without having a better
A. When a dressing will do the same thing. circumstance to debride the wound thoroughly and thoroughly
cleanse it and irrigate it before it was sewn up.
Q. Are you going to testify in this case that Dr. Batson committed
gross malpractice, gross negligence, in suturing that wound if it was .....
a temporary repair?
 P a g e | 207

Well, what I was basically saying was that I wouldn't do it and I felt Louisiana and Hawaii for decisions regarding the appropriateness of
like they ought to go to the nearest hospital, which was in Ashton, summary judgment.
Idaho, and their car wasn't starting and I told them that I would be
glad to take them over there to Ashton if they wanted me to. Rule 56(c), M.R.Civ.P. provides for a case of this type. In Shimsky
v. Valley Credit (1984), 208 Mont. 186, 676 P.2d 1308, this Court
It is interesting to note that from the time the first Good Samaritan held that when a case is disposed of below on a motion for summary
Statute was passed in 1959, up until 1981, only fourteen reported judgment before a judge sitting without a jury and no testimony is
cases in other jurisdictions dealt with those jurisdictions' statutes, taken as the facts are relatively uncontested, the scope of review is
and only five cases where the statute was found applicable. See, much broader than in other appeals and the Supreme Court is free to
Good Samaritan Laws — Who Needs Them?: The Current State of make its own examination of the entire case and reach a conclusion
Good Samaritan Protection in the United States, 21 S.Tex.L.J. 341 in accordance with its findings. Shimsky, 676 P.2d at 1310.
at 350 (1981). Furthermore, the Court will uphold the result below if it is correct,
regardless of the reasons given below for the result. See, Montana
Department of Natural Resources and Conservation v. Clark Fork
A review of Good Samaritan statutes of other states indicates that the
Logging Co., Inc. (1982), 198 Mont. 494, 646 P.2d 1207.
medical situation must be an emergency situation before immunity
can be invoked, yet few states have defined the term "emergency" in
their statutes, 21 S.Tex.L.J. at 346. In Colby v. Schwartz (1978), 78 Here the District Court very carefully noted the elements contained
Cal. App. 3d 885, 144 Cal. Rptr. 624, the California Court of in § 27-1-714, MCA, Montana's Good Samaritan Statute:
Appeals addressed the competing interest in numerous other states'
statutes. In Colby that court set forth the reason for the enactment of Any person licensed as a physician and surgeon under the laws of
the Good Samaritan statutes. That court noted: the State of Montana, ... or any other person who in good faith
renders emergency care or assistance without compensation ... at the
The enactment of Good Samaritan legislation represents the scene of an emergency or accident is not liable for any civil damages
resolution of competing interests. On the one hand, there is an for acts or omissions other than damages occasioned by gross
interest in the vindication of the rights of the malpractice victim. On negligence or by willful or wanton acts or omissions by such person
the other hand, there is the need to encourage physicians to render in rendering such emergency care or assistance.
emergency medical care when they otherwise might *731 not.
Where applicable, the legislation favors the latter over the former. The District Court carefully noted the plaintiff's contention, that Dr.
Batson offered care gratuitously and for no compensation, the
Colby, 78 Cal. App.3d at 893-894, 144 Cal. Rptr. at 628-629. We plaintiff's concession that Dr. Batson was in a protected and immune
find that that is the central reason for the legislation here in Montana class, the plaintiff's denial that there was an emergency at the scene
and that the standard of review is one of gross negligence and willful of the accident and the plaintiff's conclusion, therefore, that the act
or wanton acts or omissions, rather than ordinary negligence/medical does not apply in this case.
malpractice.
The court carefully analyzed the testimony that was given and finds
Here Dr. Batson rendered temporary first-aid with limited medical that there was an "emergency" situation and no gross negligence or
equipment having been awakened early in the morning to do this for willful or wanton acts were committed. The court further found that
McCain and thereafter having warned her and her two companions all of the elements of the Good Samaritan Statute were met and that
that it was necessary to obtain immediate care both in Ashton, Idaho its standard of gross negligence applied to the facts in this case.
and when she got home to Ogden, Utah. As previously noted all While this Court generally prefers a trial on the merits of a case to
parties agree, except McCain and Dr. Grindley, that what was done dismissal by *732 summary judgment, we affirm the District Court
under the circumstances was a first-aid treatment by Dr. Batson with in its findings. We are willing to look at the facts presented and not
directions to immediately seek help when she got home and the fact force a defendant to go through a prolonged, expensive and
that she waited over a week before seeking further medical treatment emotionally debilitating trial for such well intended and medically
resulted in infection and the necessary surgery that followed. accepted deeds as Dr. Batson performed at West Yellowstone,
McCain's treating physician and treating surgeon both testified that Montana. The relevant and material facts point to this conclusion
under the circumstances what Dr. Batson did was neither negligent and the ultimate question is a matter of law. We further agree with
nor malpractice. the District Court in this case that Dr. Batson was a good samaritan,
that he acted in an emergency, and since there has been no showing
of gross negligence, the decision of the District Court to grant
As we have previously noted in the testimony of Dr. Grindley, he
summary judgment is affirmed.
did not and could not testify that Dr. Batson was guilty of gross
negligence or willful or wanton acts or omissions. Absent any proof
of gross negligence on the part of Dr. Batson, McCain claims that TURNAGE, C.J., and HUNT and GULBRANDSON, JJ., concur.
the Good Samaritan Statute did not apply to the facts of this case,
and that therefore proof of ordinary negligence is all that she had to SHEEHY, Justice, dissenting:
prove in her claim against Dr. Batson. She does this by arguing that
summary judgment was improper. The general rule surrounding The recent penchant of this Court to approve summary judgments
summary judgment and whether it should or should not be granted from the District Court where genuine issues of material fact exist is
has been well set forth in the decisions of this Court. As respondent shown again in this case. There are two genuine issues of material
noted we need not go to the Eighth Circuit, the states of Indiana, fact presented here: (1) whether an emergency existed requiring, as a
 P a g e | 208

good samaritan, the assistance of Dr. Batson; and (2) if the answer to cut was extremely serious, possibly bone deep; there was no hospital
the first query is affirmative, whether Batson was guilty of gross in town; the Ashton hospital had no anesthesia facilities; there was
negligence; and if the answer is no to the first query, whether he was no available ambulance; no police officer or other friends to provide
guilty of ordinary negligence. transportation to a hospital; and reason to believe the "limb was at
risk." Not mentioned by the District Court was the testimony of Dr.
We said in Kronen v. Richter (Mont. 1984), 683 P.2d 1315: Grindley that a simple dressing would suffice under the
circumstances, and that suturing the wound presented a case of final
Summary judgment is never to be used as a substitute for trial if a repair.
factual controversy exists (citing a case). Summary judgment is only
proper if the pleadings, depositions, answers to interrogatories and Since there existed a genuine issue of material fact, one that should
have been decided by a trier of fact, such as a jury, the issue should
admissions on file show that there is no genuine issue of material
not have been decided on summary judgment.
fact (citing a case) ...
The second issue of fact was whether the attendance by the doctor in
683 P.2d at 1317. this case constituted either ordinary or gross negligence. The
majority, without defining gross negligence in this instance, has
In granting a motion for summary judgment, the discretion of the determined that there was no gross negligence on the part of the
District Court, and of this Court in reviewing documents is limited. defendant doctor. None of the witnesses defined what was meant by
gross negligence. The only definition on which this Court relies is
A discussion of discretion divides into two parts: Discretion in the following:
granting and in denying a motion for summary judgment. As we
shall see, the Court cannot draw upon any discretionary power to Q. Well, in your opinion, if this was a temporary suturing job by Dr.
grant summary judgment; the Court may however exercise its sound Batson, did that, in your opinion, constitute gross negligence, gross
discretion in denying a motion of summary judgment although on malpractice?
the record the movant has made out a case therefor.
A. Well, you see you really haven't told me what gross malpractice
is yet or gross negligence.
6 Moore's Federal Practice (Part II), page 56-601, ¶ 56.15[6] (1987).
Q. Well, it's a heck of a lot worse than ordinary malpractice.
The plaintiff has lost this appeal because the facts are not appealing.
The District Court expressed the problem: If any District Court in Montana had given a jury an instruction that
so defined gross negligence, we would in high dudgeon reject it as
The court would admit to some problems of keeping an impartial inadequate. Here, the majority, without otherwise defining gross
perspective in this case, but is satisfied, when all is said and done, negligence as it applies under the Good Samaritan statute,
that this is a fair decision based on thorough research, sufficient undertakes no other definition to resolve the fact issue of gross
facts, and clear rules of law. Nonetheless, the court cannot help but negligence.
wonder where our society is taking itself by bringing cases like this
to the courtroom. We may be well on our way to making an We might entertain in ourselves a serious doubt that the plaintiff
endangered species out of good samaritans who are forced to stifle would prevail if she had been permitted to take her case to a jury to
their good impulses out of fear of being taken to court. If this is the resolve the fact issues. Our personal feelings about the propriety of a
trend, it is indeed unfortunate. case have no place in deciding questions on summary judgment. If
issues of fact exist, as Professor Moore notes, supra, there is no
discretion, in our Court or in the District Court, to grant summary
The other side of that coin is that if Karen McCain has sustained
judgment.
serious and permanent damages to her leg because Dr. Batson,
instead of rendering aid sufficient for the moment, in effect,
"overtreated" her, she is entitled to have her case heard in court, I would reverse and remand for further proceedings.
even though Dr. Batson acted from the best of impulses.
G.R. No. L-55300 March 15, 1990
The first issue here was whether an emergency existed at the time of
Dr. Batson's treatment. The District Court balanced those issues of FRANKLIN G. GACAL and CORAZON M. GACAL, the
fact and decided that an emergency existed. In doing so, it latter assisted by her husband, FRANKLIN G.
determined a question of fact, an improper procedure where GACAL, petitioners,
summary judgment is concerned. vs.
PHILIPPINE AIR LINES, INC., and THE HONORABLE
First, the District Court ticked off the facts which contended for no PEDRO SAMSON C. ANIMAS, in his capacity as
emergency: There was no major blood loss; her life was not in PRESIDING JUDGE of the COURT OF FIRST
danger and she was not going to die; she would not lose the limb; the
INSTANCE OF SOUTH COTABATO, BRANCH I,
leg had a numb sensation and there was an absence of pain
immediately following the injury; and she was neurologically intact. respondents.
*733 Opposing that, said the court, was that the witnesses agreed the
 P a g e | 209

PARAS, J.:This is a, petition for review on certiorari of the peppered with bullets by the army and after two
decision of the Court of First Instance of South Cotabato, Branch 1, (2) hand grenades exploded inside the plane. She
* promulgated on August 26, 1980 dismissing three (3) consolidated was hospitalized at General Santos Doctors
cases for damages: Civil Case No. 1701, Civil Case No. 1773 and Hospital, General Santos City, for two (2) days,
Civil Case No. 1797 (Rollo, p. 35). spending P245.60 for hospital and medical
expenses, Assistant City Fiscal Bonifacio S.
The facts, as found by respondent court, are as follows: Anislag also escaped unhurt but Mrs. Anislag
suffered a fracture at the radial bone of her left
Plaintiffs Franklin G. Gacal and his wife, Corazon elbow for which she was hospitalized and operated
M. Gacal, Bonifacio S. Anislag and his wife, on at the San Pedro Hospital, Davao City, and
Mansueta L. Anislag, and the late Elma de therefore, at Davao Regional Hospital, Davao
Guzman, were then passengers boarding City, spending P4,500.00. Elma de Guzman died
defendant's BAC 1-11 at Davao Airport for a flight because of that battle. Hence, the action of
to Manila, not knowing that on the same flight, damages instituted by the plaintiffs demanding the
Macalinog, Taurac Pendatum known as following damages, to wit:
Commander Zapata, Nasser Omar, Liling Pusuan
Radia, Dimantong Dimarosing and Mike Randa, Civil Case No. 1701 —
all of Marawi City and members of the Moro
National Liberation Front (MNLF), were their co- City Fiscal Franklin G. Gacal
passengers, three (3) armed with grenades, two (2) and Mrs. Corazon M. Gacal —
with .45 caliber pistols, and one with a .22 caliber actual damages: P245.60 for
pistol. Ten (10) minutes after take off at about 2:30 hospital and medical expenses of
in the afternoon, the hijackers brandishing their Mrs Gacal; P8,995.00 for their
respective firearms announced the hijacking of the personal belongings which were
aircraft and directed its pilot to fly to Libya. With lost and not recovered;
the pilot explaining to them especially to its leader, P50,000.00 each for moral
Commander Zapata, of the inherent fuel damages; and P5,000.00 for
limitations of the plane and that they are not rated attorney's fees, apart from the
for international flights, the hijackers directed the prayer for an award of
pilot to fly to Sabah. With the same explanation, exemplary damages (Record, pp.
they relented and directed the aircraft to land at 4-6, Civil Case No. 1701).
Zamboanga Airport, Zamboanga City for
refueling. The aircraft landed at 3:00 o'clock in the Civil Case No. 1773 —
afternoon of May 21, 1976 at Zamboanga Airport.
When the plane began to taxi at the runway, it was x x x           x x x          x x x
met by two armored cars of the military with
machine guns pointed at the plane, and it stopped
there. The rebels thru its commander demanded Civil Case No. 1797 —
that a DC-aircraft take them to Libya with the
President of the defendant company as hostage and xxx xxx xxx
that they be given $375,000 and six (6) armalites,
otherwise they will blow up the plane if their The trial court, on August 26, 1980, dismissed the complaints
demands will not be met by the government and finding that all the damages sustained in the premises were attributed
Philippine Air Lines. Meanwhile, the passengers to force majeure.
were not served any food nor water and it was
only on May 23, a Sunday, at about 1:00 o'clock in On September 12, 1980 the spouses Franklin G. Gacal and Corazon
the afternoon that they were served 1/4 slice of a M. Gacal, plaintiffs in Civil Case No. 1701, filed a notice of appeal
sandwich and 1/10 cup of PAL water. After that, with the lower court on pure questions of law (Rollo, p. 55) and the
relatives of the hijackers were allowed to board the petition for review on certiorari was filed with this Court on October
plane but immediately after they alighted 20, 1980 (Rollo, p. 30).
therefrom, an armored car bumped the stairs. That
commenced the battle between the military and the
The Court gave due course to the petition (Rollo, p. 147) and both
hijackers which led ultimately to the liberation of
parties filed their respective briefs but petitioner failed to file reply
the surviving crew and the passengers, with the
brief which was noted by the Court in the resolution dated May 3,
final score of ten (10) passengers and three (3)
1982 (Rollo, p. 183).
hijackers dead on the spot and three (3) hijackers
captured.
Petitioners alleged that the main cause of the unfortunate incident is
the gross, wanton and inexcusable negligence of respondent Airline
City Fiscal Franklin G. Gacal was unhurt. Mrs.
personnel in their failure to frisk the passengers adequately in order
Corazon M. Gacal suffered injuries in the course
to discover hidden weapons in the bodies of the six (6) hijackers.
of her jumping out of the plane when it was
They claimed that despite the prevalence of skyjacking, PAL did not
 P a g e | 210

use a metal detector which is the most effective means of In order to constitute a caso fortuito or force majeure that would
discovering potential skyjackers among the passengers (Rollo, pp. 6- exempt a person from liability under Article 1174 of the Civil Code,
7). it is necessary that the following elements must concur: (a) the cause
of the breach of the obligation must be independent of the human
Respondent Airline averred that in the performance of its obligation will (the will of the debtor or the obligor); (b) the event must be
to safely transport passengers as far as human care and foresight can either unforeseeable or unavoidable; (c) the event must be such as to
provide, it has exercised the utmost diligence of a very cautious render it impossible for the debtor to fulfill his obligation in a
person with due regard to all circumstances, but the security checks normal manner; and (d) the debtor must be free from any
and measures and surveillance precautions in all flights, including participation in, or aggravation of the injury to the creditor (Lasam v.
the inspection of baggages and cargo and frisking of passengers at Smith, 45 Phil. 657 [1924]; Austria v. Court of Appeals, 39 SCRA
the Davao Airport were performed and rendered solely by military 527 [1971]; Estrada v. Consolacion, supra; Vasquez v. Court of
personnel who under appropriate authority had assumed exclusive Appeals, 138 SCRA 553 [1985]; Juan F. Nakpil & Sons v. Court of
jurisdiction over the same in all airports in the Philippines. Appeals, 144 SCRA 596 [1986]). Caso fortuito or force majeure, by
definition, are extraordinary events not foreseeable or avoidable,
Similarly, the negotiations with the hijackers were a purely events that could not be foreseen, or which, though foreseen, are
government matter and a military operation, handled by and subject inevitable. It is, therefore, not enough that the event should not have
to the absolute and exclusive jurisdiction of the military authorities. been foreseen or anticipated, as is commonly believed, but it must be
Hence, it concluded that the accident that befell RP-C1161 was one impossible to foresee or to avoid. The mere difficulty to foresee
caused by fortuitous event, force majeure and other causes beyond the happening is not impossibility to foresee the same (Republic v.
the control of the respondent Airline. Luzon Stevedoring Corporation, 21 SCRA 279 [1967]).

The determinative issue in this case is whether or not hijacking or air Applying the above guidelines to the case at bar, the failure to
piracy during martial law and under the circumstances obtaining transport petitioners safely from Davao to Manila was due to the
herein, is a caso fortuito or force majeure which would exempt an skyjacking incident staged by six (6) passengers of the same plane,
aircraft from payment of damages to its passengers whose lives were all members of the Moro National Liberation Front (MNLF),
put in jeopardy and whose personal belongings were lost during the without any connection with private respondent, hence, independent
incident. of the will of either the PAL or of its passengers.

Under the Civil Code, common carriers are required to exercise Under normal circumstances, PAL might have foreseen the
extraordinary diligence in their vigilance over the goods and for the skyjacking incident which could have been avoided had there been a
safety of passengers transported by them, according to all the more thorough frisking of passengers and inspection of baggages as
circumstances of each case (Article 1733). They are presumed at authorized by R.A. No. 6235. But the incident in question occurred
fault or to have acted negligently whenever a passenger dies or is during Martial Law where there was a military take-over of airport
injured (Philippine Airlines, Inc. v. National Labor Relations security including the frisking of passengers and the inspection of
Commission, 124 SCRA 583 [1983]) or for the loss, destruction or their luggage preparatory to boarding domestic and international
deterioration of goods in cases other than those enumerated in flights. In fact military take-over was specifically announced on
Article 1734 of the Civil Code (Eastern Shipping Lines, Inc. v. October 20, 1973 by General Jose L. Rancudo, Commanding
Intermediate Appellate Court, 150 SCRA 463 [1987]). General of the Philippine Air Force in a letter to Brig. Gen. Jesus
Singson, then Director of the Civil Aeronautics Administration
(Rollo, pp. 71-72) later confirmed shortly before the hijacking
The source of a common carrier's legal liability is the contract of incident of May 21, 1976 by Letter of Instruction No. 399 issued on
carriage, and by entering into said contract, it binds itself to carry the April 28, 1976 (Rollo, p. 72).
passengers safely as far as human care and foresight can provide.
There is breach of this obligation if it fails to exert extraordinary
diligence according to all the circumstances of the case in exercise of Otherwise stated, these events rendered it impossible for PAL to
the utmost diligence of a very cautious person (Isaac v. Ammen perform its obligations in a nominal manner and obviously it cannot
Transportation Co., 101 Phil. 1046 [1957]; Juntilla v. Fontanar, 136 be faulted with negligence in the performance of duty taken over by
SCRA 624 [1985]). the Armed Forces of the Philippines to the exclusion of the former.

It is the duty of a common carrier to overcome the presumption of Finally, there is no dispute that the fourth element has also been
negligence (Philippine National Railways v. Court of Appeals, 139 satisfied. Consequently the existence of force majeure has been
SCRA 87 [1985]) and it must be shown that the carrier had observed established exempting respondent PAL from the payment of
the required extraordinary diligence of a very cautious person as far damages to its passengers who suffered death or injuries in their
as human care and foresight can provide or that the accident was persons and for loss of their baggages.
caused by a fortuitous event (Estrada v. Consolacion, 71 SCRA 523
[1976]). Thus, as ruled by this Court, no person shall be responsible PREMISES CONSIDERED, the petition is hereby DISMISSED for
for those "events which could not be foreseen or which though lack of merit and the decision of the Court of First Instance of South
foreseen were inevitable. (Article 1174, Civil Code). The term is Cotabato, Branch I is hereby AFFIRMED.
synonymous with caso fortuito (Lasam v. Smith, 45 Phil. 657
[1924]) which is of the same sense as "force majeure" (Words and SO ORDERED.
Phrases Permanent Edition, Vol. 17, p. 362).
 P a g e | 211

G.R. No. 122445 November 18, 1997 Penal Code, and she is hereby sentenced to suffer
the penalty of 2 months and 1 day imprisonment of
DR. NINEVETCH CRUZ, petitioner, arresto mayor with costs. 6
vs.
COURT OF APPEALS and LYDIA UMALI, respondents. The petitioner appealed her conviction to the Regional Trial
Court (RTC) which affirmed in toto the decision of the
MTCC 7 prompting the petitioner to file a petition for
review with the Court of Appeals but to no avail. Hence
FRANCISCO, J.: this petition for review on certiorari assailing the decision
promulgated by the Court of Appeals on October 24, 1995
affirming petitioner's conviction with modification that she
Doctors are protected by a special rule of law. They are not is further directed to pay the heirs of Lydia Umali
guarantors of care. They do not even warrant a good result. They are P50,000.00 as indemnity for her death.8
not insurers against mishaps or unusual consequences. Furthermore
they are not liable for honest mistakes of judgment . . . 1
In substance, the petition brought before this Court raises
the issue of whether or not petitioner's conviction of the
The present case against petitioner is in the nature of a medical crime of reckless imprudence resulting in homicide, arising
malpractice suit, which in simplest terms is the type of claim which a from an alleged medical malpractice, is supported by the
victim has available to him or her to redress a wrong committed by a evidence on record.
medical professional which has caused bodily harm. 2 In this
jurisdiction, however, such claims are most often brought as a civil
action for damages under Article 2176 of the Civil Code, 3 and in First the antecedent facts.
some instances, as a criminal case under Article 365 of the Revised
Penal Code 4 with which the civil action for damages is impliedly On March 22, 1991, prosecution witness, Rowena Umali De
instituted. It is via the latter type of action that the heirs of the Ocampo, accompanied her mother to the Perpetual Help Clinic and
deceased sought redress for the petitioner's alleged imprudence and General Hospital situated in Balagtas Street, San Pablo City,
negligence in treating the deceased thereby causing her death. The Laguna. They arrived at the said hospital at around 4:30 in the
petitioner and one Dr. Lina Ercillo who was the attending afternoon of the same day. 9 Prior to
anaesthesiologist during the operation of the deceased were charged March 22, 1991, Lydia was examined by the petitioner who found a
with "reckless imprudence and negligence resulting to (sic) "myoma" 10 in her uterus, and scheduled her for a hysterectomy
homicide" in an information which reads: operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening of
That on or about March 23, 1991, in the City of March 22, 1991 as the latter was to be operated on the next day at
San Pablo, Republic of the Philippines and within 1:00 o'clock in the afternoon. 12 According to Rowena, she noticed
the jurisdiction of this Honorable Court, the that the clinic was untidy and the window and the floor were very
accused above named, being then the attending dusty prompting her to ask the attendant for a rag to wipe the
anaesthesiologist and surgeon, respectively, did window and the floor with. 13 Because of the untidy state of the
then and there, in a negligence (sic), careless, clinic, Rowena tried to persuade her mother not to proceed with the
imprudent, and incompetent manner, and failing to operation. 14 The following day, before her mother was wheeled
supply or store sufficient provisions and facilities into the operating room, Rowena asked the petitioner if the operation
necessary to meet any and all exigencies apt to could be postponed. The petitioner called Lydia into her office and
arise before, during and/or after a surgical the two had a conversation. Lydia then informed Rowena that the
operation causing by such negligence, petitioner told her that she must be operated on as scheduled. 15
carelessness, imprudence, and incompetence, and
causing by such failure, including the lack of Rowena and her other relatives, namely her husband, her sister and
preparation and foresight needed to avert a two aunts waited outside the operating room while Lydia underwent
tragedy, the untimely death of said Lydia Umali on operation. While they were waiting, Dr. Ercillo went out of the
the day following said surgical operation. 5 operating room and instructed them to buy tagamet ampules which
Rowena's sister immediately bought. About one hour had passed
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded when Dr. Ercillo came out again this time to ask them to buy blood
not guilty to the above-mentioned charge. On March 4, 1994, the for Lydia. They bought type "A" blood from the St. Gerald Blood
Municipal Trial Court in Cities (MTCC) of San Pablo City rendered Bank and the same was brought by the attendant into the operating
a decision, the dispositive portion of which is hereunder quoted as room. After the lapse of a few hours, the petitioner informed them
follows: that the operation was finished. The operating staff then went inside
the petitioner's clinic to take their snacks. Some thirty minutes after,
Lydia was brought out of the operating room in a stretcher and the
WHEREFORE, the court finds the accused Dra. petitioner asked Rowena and the other relatives to buy additional
Lina Ercillo not guilty of the offense charged for blood for Lydia. Unfortunately, they were not able to comply with
insufficiency of evidence while her co-accused petitioner's order as there was no more type "A" blood available in
Dra. Ninevetch Cruz is hereby held responsible for the blood bank. Thereafter, a person arrived to donate blood which
the death of Lydia Umali on March 24, 1991, and was later transfused to Lydia. Rowena then noticed her mother, who
therefore guilty under Art. 365 of the Revised was attached to an oxygen tank, gasping for breath. Apparently the
 P a g e | 212

oxygen supply had run out and Rowena's husband together with the brought for operation at the San Pablo City District
driver of the accused had to go to the San Pablo District Hospital to Hospital. As such, the surgeon should answer for
get oxygen. Lydia was given the fresh supply of oxygen as soon as it such negligence. With respect to Dra. Lina Ercillo,
arrived. 16 But at around 10:00 o'clock P.M. she went into shock the anaesthesiologist, there is no evidence to
and her blood pressure dropped to 60/50. Lydia's unstable condition indicate that she should be held jointly liable with
necessitated her transfer to the San Pablo District Hospital so she Dra. Cruz who actually did the operation. 23
could be connected to a respirator and further examined. 17 The
transfer to the San Pablo District Hospital was without the prior The RTC reiterated the abovementioned findings of the MTCC and
consent of Rowena nor of the other relatives present who found out upheld the latter's declaration of "incompetency, negligence and lack
about the intended transfer only when an ambulance arrived to take of foresight and skill of appellant (herein petitioner) in handling the
Lydia to the San Pablo District Hospital. Rowena and her other subject patient before and after the operation." 24 And likewise
relatives then boarded a tricycle and followed the ambulance. 18 affirming the petitioner's conviction, the Court of Appeals echoed
similar observations, thus:
Upon Lydia's arrival at the San Pablo District Hospital, she was
wheeled into the operating room and the petitioner and Dr. Ercillo . . . While we may grant that the untidiness and
re-operated on her because there was blood oozing from the filthiness of the clinic may not by itself indicate
abdominal incision. 19 The attending physicians summoned Dr. negligence, it nevertheless shows the absence of
Bartolome Angeles, head of the Obstetrics and Gynecology due care and supervision over her subordinate
Department of the San Pablo District Hospital. However, when Dr. employees. Did this unsanitary condition permeate
Angeles arrived, Lydia was already in shock and possibly dead as the operating room? Were the surgical instruments
her blood pressure was already 0/0. Dr. Angeles then informed properly sterilized? Could the conditions in the OR
petitioner and Dr. Ercillo that there was nothing he could do to help have contributed to the infection of the patient?
save the patient. 20 While the petitioner was closing the abdominal Only the petitioner could answer these, but she
wall, the patient died. 21 Thus, on March 24, 1991, at 3:00 o'clock in opted not to testify. This could only give rise to the
the morning, Lydia Umali was pronounced dead. Her death presumption that she has nothing good to testify on
certificate states "shock" as the immediate cause of death and her defense. Anyway, the alleged "unverified
"Disseminated Intravascular Coagulation (DIC)" as the antecedent statement of the prosecution witness" remains
cause. 22 unchallenged and unrebutted.

In convicting the petitioner, the MTCC found the following Likewise undisputed is the prosecution's version
circumstances as sufficient basis to conclude that she was indeed indicating the following facts: that the accused
negligent in the performance of the operation: asked the patient's relatives to buy Tagamet
capsules while the operation was already in
. . . , the clinic was untidy, there was lack of progress; that after an hour, they were also asked
provision like blood and oxygen to prepare for any to buy type "A" blood for the patient; that after the
contingency that might happen during the surgery, they were again asked to procure more
operation. The manner and the fact that the patient type "A" blood, but such was not anymore
was brought to the San Pablo District Hospital for available from the source; that the oxygen given to
reoperation indicates that there was something the patient was empty; and that the son-in-law of
wrong in the manner in which Dra. Cruz the patient, together with a driver of the petitioner,
conducted the operation. There was no showing had to rush to the San Pablo City District Hospital
that before the operation, accused Dra. Cruz had to get the much-needed oxygen. All these
conducted a cardio pulmonary clearance or any conclusively show that the petitioner had not
typing of the blood of the patient. It was (sic) said prepared for any unforeseen circumstances before
in medical parlance that the "the abdomen of the going into the first surgery, which was not
person is a temple of surprises" because you do not emergency in nature, but was elective or pre-
know the whole thing the moment it was open scheduled; she had no ready antibiotics, no
(sic) and surgeon must be prepared for any prepared blood, properly typed and cross-matched,
eventuality thereof. The patient (sic) chart which is and no sufficient oxygen supply.
a public document was not presented because it is
only there that we could determine the condition of Moreover, there are a lot of questions that keep
the patient before the surgery. The court also nagging Us. Was the patient given any cardio-
noticed in Exh. "F-1" that the sister of the pulmonary clearance, or at least a clearance by an
deceased wished to postpone the operation but the internist, which are standard requirements before a
patient was prevailed upon by Dra. Cruz to patient is subjected to surgery. Did the petitioner
proceed with the surgery. The court finds that determine as part of the pre-operative evaluation,
Lydia Umali died because of the negligence and the bleeding parameters of the patient, such as
carelessness of the surgeon Dra. Ninevetch Cruz bleeding time and clotting time? There is no
because of loss of blood during the operation of showing that these were done. The petitioner just
the deceased for evident unpreparedness and for appears to have been in a hurry to perform the
lack of skill, the reason why the patient was operation, even as the family wanted a
 P a g e | 213

postponement to April 6, 1991. Obviously, she did conclusion is still best arrived at not through the educated surmises
not prepare the patient; neither did she get the nor conjectures of laymen, including judges, but by the
family's consent to the operation. Moreover, she unquestionable knowledge of expert witnesses. For whether a
did not prepare a medical chart with instructions physician or surgeon has exercised the requisite degree of skill and
for the patient's care. If she did all these, proof care in the treatment of his patient is, in the generality of cases, a
thereof should have been offered. But there is matter of expert opinion. 30 The deference of courts to the expert
none. Indeed, these are overwhelming evidence of opinion of qualified physicians stems from its realization that the
recklessness and imprudence. 25 latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating. 31 Expert
This Court, however, holds differently and finds the foregoing testimony should have been offered to prove that the circumstances
circumstances insufficient to sustain a judgment of conviction cited by the courts below are constitutive of conduct falling below
against the petitioner for the crime of reckless imprudence resulting the standard of care employed by other physicians in good standing
in homicide. The elements of reckless imprudence are: (1) that the when performing the same operation. It must be remembered that
offender does or fails to do an act; (2) that the doing or the failure to when the qualifications of a physician are admitted, as in the instant
do that act is voluntary; (3) that it be without malice; (4) that case, there is an inevitable presumption that in proper cases he takes
material damage results from the reckless imprudence; and (5) that the necessary precaution and employs the best of his knowledge and
there is inexcusable lack of precaution on the part of the offender, skill in attending to his clients, unless the contrary is sufficiently
taking into consideration his employment or occupation, degree of established. 32 This presumption is rebuttable by expert opinion
intelligence, physical condition, and other circumstances regarding which is so sadly lacking in the case at bench.
persons, time and place.
Even granting arguendo that the inadequacy of the facilities and
Whether or not a physician has committed an "inexcusable lack of untidiness of the clinic; the lack of provisions; the failure to conduct
precaution" in the treatment of his patient is to be determined pre-operation tests on the patient; and the subsequent transfer of
according to the standard of care observed by other members of the Lydia to the San Pablo Hospital and the reoperation performed on
profession in good standing under similar circumstances bearing in her by the petitioner do indicate, even without expert testimony, that
mind the advanced state of the profession at the time of treatment or petitioner was recklessly imprudent in the exercise of her duties as a
the present state of medical science. 26 In the recent case of Leonila surgeon, no cogent proof exists that any of these circumstances
Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that caused petitioner's death. Thus, the absence of the fourth element of
in accepting a case, a doctor in effect represents that, having the reckless imprudence: that the injury to the person or property was a
needed training and skill possessed by physicians and surgeons consequence of the reckless imprudence.
practicing in the same field, he will employ such training, care and
skill in the treatment of his patients. He therefore has a duty to use at In litigations involving medical negligence, the plaintiff has the
least the same level of care that any other reasonably competent burden of establishing appellant's negligence and for a reasonable
doctor would use to treat a condition under the same circumstances. conclusion of negligence, there must be proof of breach of duty on
It is in this aspect of medical malpractice that expert testimony is the part of the surgeon as well as a causal connection of such breach
essential to establish not only the standard of care of the profession and the resulting death of his patient. 33 In Chan Lugay v. St. Luke's
but also that the physician's conduct in the treatment and care falls Hospital, Inc., 34 where the attending physician was absolved of
below such standard. 28 Further, inasmuch as the causes of the liability for the death of the complainant's wife and newborn baby,
injuries involved in malpractice actions are determinable only in the this Court held that:
light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to In order that there may be a recovery for an injury,
causation. 29 however, it must be shown that the "injury for
which recovery is sought must be the legitimate
Immediately apparent from a review of the records of this case is the consequence of the wrong done; the connection
absence of any expert testimony on the matter of the standard of care between the negligence and the injury must be a
employed by other physicians of good standing in the conduct of direct and natural sequence of events, unbroken by
similar operations. The prosecution's expert witnesses in the persons intervening efficient causes." In other words, the
of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National negligence must be the proximate cause of the
Bureau of Investigation (NBI) only testified as to the possible cause injury. For, "negligence, no matter in what it
of death but did not venture to illuminate the court on the matter of consists, cannot create a right of action unless it is
the standard of care that petitioner should have exercised. the proximate cause of the injury complained of ."
And "the proximate cause of an injury is that
All three courts below bewail the inadequacy of the facilities of the cause, which, in natural and continuous sequence,
clinic and its untidiness; the lack of provisions such as blood, unbroken by any efficient intervening cause,
oxygen, and certain medicines; the failure to subject the patient to a produces the injury, and without which the result
cardio-pulmonary test prior to the operation; the omission of any would not have occurred." 35 (Emphasis
form of blood typing before transfusion; and even the subsequent supplied.)
transfer of Lydia to the San Pablo Hospital and the reoperation
performed on her by the petitioner. But while it may be true that the Dr. Arizala who conducted an autopsy on the body of the deceased
circumstances pointed out by the courts below seemed beyond cavil summarized his findings as follows:
to constitute reckless imprudence on the part of the surgeon, this
 P a g e | 214

Atty. Cachero: 100 c.c., right

pelvic gutter
Q. You mentioned about your stomach
Autopsy Report which has been empty.
marked as Exh. "A-1-b". There
appears here a signature above Other visceral organs, pale.,
the typewritten name Floresto
Arizala, Jr., whose signature is will you please explain that on (sic) your own
that? language or in ordinary. . . . . . . . . . . .

A. That is my signature, sir. A. There was a uterus which was

not attached to the adnexal
Q. Do you affirm the truth of all structures namely ovaries which
the contents of Exh. "A-1-b"? were not present and also sign of
previous surgical operation and
A. Only as to the autopsy report there were (sic) clotted blood,
no. 91-09, the time and place sir.
and everything after the post
mortem findings, sir. Q. How about the ovaries and
adnexal structures?
Q. You mentioned on your "Post
Mortem Findings" about surgical A. They are missing, sir.
incision, 14:0 cm.,
infraumbilical area, anterior Q. You mean to say there are no
abdominal area, midline, will ovaries?
you please explain that in your
own language? A. During that time there are no
ovaries, sir.
A. There was incision wound
(sic) the area just below the Q. And there were likewise sign
navel, sir. of surgical sutures?

Q. And the last paragraph of the A. Yes, sir.

postmortem findings which I
read: Uterus, pear-shaped and
pale measuring 7.5 x 5.5 x 5.0 Q. How about the intestines and
cm. with some surface mesenteries are place (sic) with
nodulation of the fundic area blood clots noted between the
posteriorly. Cut-section shows mesenteric folds, will you please
diffusely pale myometrium with explain on (sic) this?
areas of streak induration. The
ovaries and adnexal structures A. In the peritoneal cavity, they
are missing with the raw are mostly perritonial blood . . . .
surfaces patched with clotted ....
blood. Surgical sutures were
noted on the operative site. Q. And what could have caused
this blood?
Intestines and mesenteries are
pale with blood clots noted A. Well, ordinarily blood is
between the mesentric folds. found inside the blood vessel.
Blood were (sic) outside as a
Hemoperitone result of the injuries which
um: 300 s.s., destroyed the integrity of the
right paracolic vessel allowing blood to sip (sic)
gutter, out, sir.
50 c.c., left
paracolic Q. By the nature of the
gutter postmortem findings indicated in
200 c.c., Exh. A-1-B, can you tell the
mesentric area, court the cause of death?
 P a g e | 215

A. Yes, sir. The cause of death Court: Is it possible doctor that

is: Gross findings are the loss of the blood was due on
compatible with hemorrhagic (sic) operation?
shock.
A. Based on my pathologist
Q. Can you tell the us what finding, sir.
could have caused this
hemorrhagic shock? Q. What could have caused this
loss of blood?
A. Well hemorrhagic shock is
the result of blood loss. A. Many, sir. A patient who
have undergone surgery.
Q. What could have the effect of Another may be a blood vessel
that loss of blood? may be cut while on operation
and this cause (sic) bleeding, or
A. Unattended hemorrhage, sir. may be set in the course of
36 (Emphasis supplied.) operation, or may be (sic) he
died after the operation. Of
The foregoing was corroborated by Dr. Nieto Salvador: course there are other cause
(sic).
Q. And were you able to
determine the cause of death by Atty. Cachero:
virtue of the examination of the
specimen submitted by Dr. Q. Especially so doctor when
Arizala? there was no blood replacement?

A. Without knowledge of the A. Yes, sir. 37 (Emphasis

autopsy findings it would be supplied.)
difficult for me to determine the
cause of death, sir. The testimonies of both doctors establish hemorrhage or
hemorrhagic shock as the cause of death. However, as likewise
Q. Have you also examined the testified to by the expert witnesses in open court, hemorrhage or
post mortem of Dr. Arizala? hemorrhagic shock during surgery may be caused by several
different factors. Thus, Dr. Salvador's elaboration on the matter:
A. Yes, sir, and by virtue of the
autopsy report in connection Atty. Pascual:
with your pathology report.
Q. Doctor, among the causes of
Q. What could have caused the hemorrhage that you mentioned
death of the victim? you said that it could be at the
moment of operation when one
A. This pathologic examination losses (sic) control of the
are (sic) compatible with the presence, is that correct? During
person who died, sir. the operation there is lost (sic) of
control of the cut vessel?
Q. Will you explain to us the
meaning of hemorrhagic A. Yes, sir.
compatible?
Q. Or there is a failure to ligate a
A. It means that a person died of vessel of considerable size?
blood loss. Meaning a person
died of non-replacement of A. Yes, sir.
blood and so the victim before
she died there was shock of Q. Or even if the vessel were
diminish of blood of the ligated the knot may have
circulation. She died most slipped later on?
probably before the actual
complete blood loss, sir. A. Yes, sir.
 P a g e | 216

Q. And you also mentioned that A. Definitely, sir. 39 (Emphasis

it may be possible also to some supplied.)
clotting defect, is that correct?
According to both doctors, the possible causes of hemorrhage during
A. May be (sic). 38 (Emphasis an operation are: (1) the failure of the surgeon to tie or suture a cut
supplied). blood vessel; (2) allowing a cut blood vessel to get out of control; (3)
the subsequent loosening of the tie or suture applied to a cut blood
Defense witness, Dr. Bu C. Castro also gave the following expert vessel; and (4) and a clotting defect known as DIC. It is significant
opinion: to state at this juncture that the autopsy conducted by Dr. Arizala on
the body of Lydia did not reveal any untied or unsutured cut blood
Q. Doctor even a patient after vessel nor was there any indication that the tie or suture of a cut
an operations (sic) would suffer blood vessel had become loose thereby causing the hemorrhage. 40
hemorrage what would be the Hence the following pertinent portion of Dr. Arizala's testimony:
possible causes of such
hemorrage (sic)? Q: Doctor, in examining these
structures did you know whether
A. Among those would be what these were sutured ligature or
we call Intravascular plain ligature
Coagulation and this is the
reason for the bleeding, sir, A: Ligature, sir.
which cannot be prevented by
anyone, it will happen to Q: We will explain that later on.
anyone, anytime and to any Did you recall if the cut
persons (sic), sir. structures were tied by first
suturing it and then tying a knot
COURT: or the tie was merely placed
around the cut structure and
What do you think of the cause tied?
of the bleeding, the cutting or
the operations done in the body? A: I cannot recall, sir.

A. Not related to this one, the Q: As a matter of fact, you

bleeding here is not related to cannot recall because you did
any cutting or operation that I not even bothered (sic) to
(sic) have done. examine, is that correct?

Q. Aside from the DIC what A: Well, I bothered enough to

could another causes (sic) that know that they were sutured, sir.
could be the cause for the
hemorrhage or bleeding in a Q: So, therefore, Doctor, you
patient by an operations (sic)? would not know whether any of
the cut structures were not
A. In general sir, if there was an sutured or tied neither were you
operations (sic) and it is possible able to determine whether any
that the ligature in the suture was loose suture was found in the
(sic) become (sic) loose, it is peritoneal cavity?
(sic) becomes loose if proven..
A: I could not recall any loose
x x x           x x x          x x x sutured (sic), sir. 41

Q. If the person who performed On the other hand, the findings of all three doctors do not preclude
an autopsy does not find any the probability that DIC caused the hemorrhage and consequently,
untight (sic) clot (sic) blood Lydia's death. DIC which is a clotting defect creates a serious
vessel or any suture that become bleeding tendency and when massive DIC occurs as a complication
(sic) loose the cause of the of surgery leaving raw surface, major hemorrhage occurs. 42 And as
bleeding could not be attributed testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to
to the fault of the subject? DIC "cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
 P a g e | 217

Q. Now, under that circumstance Precisely based on this

one of the possibility as you examination.
mentioned in (sic) DIC?
ATTY. MALVEDA:
A. Yes, sir.
Not finding, there was no
Q. And you mentioned that this finding made.
cannot be prevented?
COURT:
A. Yes, sir.
He is only reading the record.
Q. Can you even predict if it
really happen (sic)? ATTY. PASCUAL:

A. Possible, sir. Yes, sir.

Q. Are there any specific A. No, sir, there is no fault on

findings of autopsy that will tell the part of the surgeon, sir. 44
you whether this patient suffered
among such things as DIC? This Court has no recourse but to rely on the expert testimonies
rendered by both prosecution and defense witnesses that substantiate
A. Well, I did reserve because of rather than contradict petitioner's allegation that the cause of Lydia's
the condition of the patient. death was DIC which, as attested to by an expert witness, cannot be
attributed to the petitioner's fault or negligence. The probability that
Q. Now, Doctor you said that Lydia's death was caused by DIC was unrebutted during trial and has
you went through the record of engendered in the mind of this Court a reasonable doubt as to the
the deceased Lydia Umali petitioner's guilt. Thus, her acquittal of the crime of reckless
looking for the chart, the imprudence resulting in homicide. While we condole with the family
operated (sic) records, the post of Lydia Umali, our hands are bound by the dictates of justice and
mortem findings on the fair dealing which hold inviolable the right of an accused to be
histophanic (sic) examination presumed innocent until proven guilty beyond reasonable doubt.
based on your examination of Nevertheless, this Court finds the petitioner civilly liable for the
record, doctor, can you more or death of Lydia Umali, for while a conviction of a crime requires
less says (sic) what part are (sic) proof beyond reasonable doubt, only a preponderance of evidence is
concerned could have been the required to establish civil liability. 45
caused (sic) of death of this
Lydia Umali? The petitioner is a doctor in whose hands a patient puts his life and
limb. For insufficiency of evidence this Court was not able to render
A. As far as the medical record a sentence of conviction but it is not blind to the reckless and
is concern (sic) the caused (sic) imprudent manner in which the petitioner carried out her duties. A
of death is dessimulated (sic) precious life has been lost and the circumstances leading thereto
Intra Vascular Coagulation or exacerbated the grief of those left behind. The heirs of the deceased
the DIC which resulted to continue to feel the loss of their mother up to the present time 46 and
hemorrhage or bleedings, sir. this Court is aware that no amount of compassion and
commiseration nor words of bereavement can suffice to assuage the
Q. Doctor based on your sorrow felt for the loss of a loved one. Certainly, the award of moral
findings then there is knowing and exemplary damages in favor of the heirs of Lydia Umali are
(sic) the doctor would say proper in the instant case.
whether the doctor her (sic) has
been (sic) fault? WHEREFORE, premises considered, petitioner DR. NINEVETCH
CRUZ is hereby ACQUITTED of the crime of reckless imprudence
ATTY. MALVEDA: resulting in homicide but is ordered to pay the heirs of the deceased
Lydia Umali the amount of FIFTY THOUSAND PESOS
We will moved (sic) to strike out (P50,000.00) as civil liability, ONE HUNDRED THOUSAND
the (sic) based on finding they PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND
just read the chart as well as the PESOS (P50,000.00) as exemplary damages.
other record.
Let a copy of this decision be furnished to the Professional
ATTY. PASCUAL: Regulation Commission (PRC) for appropriate action.
 P a g e | 218

SO ORDERED.
6

8
148 Ohio St.3d 226 (2016)

2016-Ohio-5569

CARTER ET AL., APPELLANTS,

v.
REESE ET AL., APPELLEES.

No. 2015-0108.

Supreme Court of Ohio.

Submitted January 5, 2016.

Decided August 30, 2016.

APPEAL from the Court of Appeals for Butler County, No. CA2014-04-095, 2014-Ohio-5395.

Robert A. Winter Jr. and Stephanie Collins, for appellants.

Markesbery & Richardson Co., L.P.A., Katherine A. Clemons, and Glenn A. Markesbery, for appellee Larry
Reese Jr.

Tort law — Limitation on liability — "Good Samaritan" statute — R.C. 2305.23 applies to any person who
administers emergency care at scene of emergency, not just health care professionals — "Administering
emergency care" means giving medical and nonmedical care.

O'DONNELL, J.

{¶ 1} Dennis Carter and his wife, Mary, appeal from a judgment of the Twelfth District Court of Appeals that
affirmed the trial court's grant of summary judgment in favor of Larry Reese Jr. in connection with an action
they filed for injuries Carter sustained when Reese attempted to move a tractor-trailer that had pinned
Carter's leg between the trailer and a loading dock.

{¶ 2} Ohio's Good Samaritan statute states:

No person shall be liable in civil damages for administering emergency care or treatment at the scene of an
emergency * * *, for acts performed at the scene of such emergency, unless such acts constitute willful or
wanton misconduct.

227*227 R.C. 2305.23.

{¶ 3} In this case, Carter told Reese to pull the tractor-trailer forward in order to free his leg, but when
Reese attempted to do so, the truck rolled backward, resulting in serious injury to Carter.

{¶ 4} "Administering emergency care" is a broad phrase that includes rendering medical and any other form
of assistance to the safety and well-being of another when the result of an unforeseen combination of
circumstances calls for immediate action. Therefore, because Reese administered emergency care at the
scene of the emergency and because the statute expressly states that no person shall be liable in civil
damages for acts performed at the scene of such emergency, and because no allegation of willful or
wanton misconduct has been asserted against him, pursuant to Ohio's Good Samaritan statute, Reese is
not liable in civil damages, and we affirm the judgment of the court of appeals.

Facts and Procedural History

{¶ 5} On April 24, 2012, Carter, a truck driver for S & S Transport, Inc., pulled a tractor-trailer into the
loading dock at AIC Contracting, Inc., in Fairfield, Ohio, to deliver an empty trailer and to pick up another.
After attaching the second trailer, he pulled his truck about four to six inches away from the loading dock,
unlocked the trailer brake, and locked the tractor brake so that the tractor wheels could not move. As he
pulled himself onto the loading dock to close the trailer door, he slipped, and his leg became wedged
between the loading dock and the trailer. Although he felt no physical pain at that time, he could not free
himself and began to yell for help and bang on a loading dock door in an effort to get someone to help him.

{¶ 6} About ten minutes later, Reese heard Carter and drove to the AIC Contracting lot. Carter told him to
"get in my truck, move it forward about a foot, * * * but whatever you do, don't put it in reverse." Reese
responded, "[N]o problem."

{¶ 7} Reese climbed into the cab of the truck and put it in neutral before realizing that he did not know how
to operate it. Carter recalled that Reese "revved up" the truck three times before he heard the air brake
release, and within five seconds of that happening, the trailer rolled backwards and broke his leg.

{¶ 8} Paramedics arrived four minutes later, and someone moved the truck and freed Carter's leg. Due to
the severity of the injuries, however, his right leg had to be amputated above the knee.

{¶ 9} Carter and his wife sued Reese but did not allege that he had engaged in willful or wanton
misconduct. Reese asserted Ohio's Good Samaritan statute as a 228*228 defense and moved for summary
judgment, and the trial court granted it pursuant to the statute.

{¶ 10} The court of appeals affirmed and held that R.C. 2305.23

applies to any person, health care professional or otherwise, who administers "emergency care," medical
or otherwise, at the scene of an emergency and who meets the remaining requirements of the statute, e.g.,
their acts do not constitute willful or wanton misconduct.

(Emphasis sic.) 2014-Ohio-5395, 25 N.E.3d 1086, ¶ 15. The court explained that an emergency situation
exists when a man's leg is pinned between a truck and a loading dock, that Reese's actions in attempting
to move the truck constituted emergency care because he was trying to resolve the emergency created by
Carter, and further, that Reese did not commit willful or wanton misconduct.

{¶ 11} The Carters appealed and we accepted the following proposition of law for review:

The trial court committed reversible error in granting Appellees' motion for summary judgment, and the
court of appeals committed error in affirming the judgment, because the protection afforded under the Ohio
Good Samaritan statute, R.C. 2305.23, is limited in scope and application to health care responders
providing emergency medical care or treatment to another individual at the scene of an emergency and
who otherwise satisfy the statute.

The Parties to the Appeal

{¶ 12} On appeal to this court, the Carters urge that R.C. 2305.23 provides immunity from civil liability only
for health care professionals and trained first responders who voluntarily administer
emergency medical care and treatment to injured persons at the scene of an emergency and that it is for
the General Assembly to amend R.C. 2305.23 if it intends for the statute to immunize any person who
voluntarily administers emergency nonmedical care or treatment. In support of their position, they point to
language in the statute excluding coverage for emergency care or treatment that is administered in a
hospital, doctor's office, or other place having proper medical equipment or for care rendered with the
expectation of remuneration and language regarding law enforcement officers and fire fighters acting as
part of their duties. The Carters also note that this court stated in footnote five in Primes v. Tyler, 43 Ohio
St.2d 195, 205, 331 229*229 N.E.2d 723 (1975), that R.C. 2305.23 applies to those who
render medical treatment and that appellate courts have followed Primes, and they assert that the General
Assembly is presumed to know the decisions of this court, but it has not amended the Good Samaritan
statute. They also assert that the lower courts' interpretation of R.C. 2305.23 emasculates the common law
rule that Good Samaritans have a duty to exercise reasonable care. They finally contend that Reese did
not administer any emergency care or treatment when he attempted to move the truck.

{¶ 13} Reese argues that R.C. 2305.23 applies to any person, regardless of profession, and that the
legislature could have used the phrase "health care professionals" if it had intended the statute to protect
only those individuals. Reese contends that limiting R.C. 2305.23 to those rendering
emergency medical care or treatment would require this court to add the word "medical" to the statute and
asserts the appellate court correctly determined he provided emergency care in attempting to free Carter's
leg and therefore he is protected by R.C. 2305.23. Notably, Reese does not claim that he provided
emergency treatment.

Issues on Appeal
{¶ 14} This case presents our court with two separate questions involving the legislative intent behind
Ohio's Good Samaritan statute.

{¶ 15} First, what did the General Assembly intend by using the phrase "no person shall be liable in civil
damages" — did it intend to include only health care professionals who administer emergency care or
treatment at the scene of an emergency, or, more broadly, to include any person who administers
emergency care or treatment at the scene of an emergency?

{¶ 16} Second, what did the General Assembly intend by using the phrase "administering emergency care"
— did it intend to limit emergency care to only the administration of medical care, or, did it intend to include
all forms of care administered at the scene of an emergency?

{¶ 17} Our interpretation of Ohio's Good Samaritan statute and resolution of these questions present
matters of first impression in our court. Other jurisdictions, however, have considered similar questions in
connection with their respective Good Samaritan statutes, and their decisions are instructive in resolving
these questions.

Historical Perspective
Common Law
{¶ 18} The common law in Ohio is that a bystander has no affirmative duty to aid or protect another absent
a special relationship justifying the imposition of a 230*230 duty. Estates of Morgan v. Fairfield Family
Counseling Ctr., 77 Ohio St.3d 284, 293, 673 N.E.2d 1311 (1997),  citing 2 Restatement of the Law 2d,
Torts, Sections 314-319, at 116-130 (1965); see also Gelbman v. Second Natl. Bank of Warren, 9 Ohio
St.3d 77, 79, 458 N.E.2d 1262 (1984). However, one who voluntarily and gratuitously renders services to
another for the protection of the other person is liable at common law for injuries resulting from his failure to
exercise reasonable care under the circumstances. See 2 Restatement of the Law 2d, Torts, Section 323
(1965); Keeton, Dobbs, Keeton & Owen, Prosser & Keeton on the Law of Torts, Section 56, 378 (5th
Ed.1984).

Good Samaritan Statutes

{¶ 19} In 1959, California enacted the nation's first Good Samaritan statute, which provided that no
physician or podiatrist, "who in good faith renders emergency care at the scene of the emergency, shall be
liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency
care." Cal.Bus. & Prof.Code 2144, enacted 1959, now codified as Cal.Bus. & Prof.Code 2395. See
generally Brandt, Good Samaritan Laws — The Legal Placebo: A Current Analysis, 17 Akron L.Rev. 303,
305 (1983), fn. 23. Commentators have explained that California's legislature sought to encourage
physicians to provide emergency treatment to injured persons in emergency situations without fear of
liability for malpractice. See 17 Akron L.Rev. at 306, 332; see also Waisman, Negligence, Responsibility,
and the Clumsy Samaritan: Is there a Fairness Rationale for the Good Samaritan Immunity?, 29
Ga.St.U.L.Rev. 609, 628-630 (2013).

{¶ 20} Since that time, every state has enacted some version of Good Samaritan legislation. Id. at 631; see
also Annotation, Construction and Application of "Good Samaritan" Statutes, 68 A.L.R.4th 294, 300 (1989).
These statutes generally fall into three categories — those that specifically include by reference only
medically trained persons; those that apply to the rendition of medical aid by any person; and those that
more broadly apply to any person rendering emergency care, treatment, or other kinds of assistance
without expressly requiring that such actions be medical in nature.

I. Only Medically Trained Persons

{¶ 21} Five states have Good Samaritan statutes that, with certain exceptions, expressly exclude only
medically trained persons from liability for civil damages. See Conn.Gen.Stat.Ann. 52-557b(a) ("A person
licensed to practice medicine and surgery * * * or dentistry * * *, a person licensed as a registered nurse * *
* or certified as a licensed practical nurse * * *, a medical technician or any person operating a
cardiopulmonary resuscitator or a person trained in cardiopulmonary resuscitation * * * or a person
operating an automatic external 231*231 defibrillator, who * * * renders emergency medical or professional
assistance to a person in need thereof, shall not be liable to such person assisted for civil damages * * *");
Ill.Comp.Stat.Ann. Chapter 745, 49/25 ("Any person licensed under the Medical Practice Act of 1987 or any
person licensed to practice the treatment of human ailments in any other state * * * who, in good faith,
provides emergency care * * * shall not * * * be liable for civil damages * * *"); Ky.Rev.Stat.Ann. 411.148(1)
("No physician * * *, registered or practical nurse * * *, person certified as an emergency medical technician
* * *, person certified * * * to perform cardiopulmonary resuscitation, or employee of any board of
education * * * who has completed a course in first aid and who maintains current certification * * * shall be
liable in civil damages for administering emergency care or treatment at the scene of an emergency * * *");
Mich.Comp.Laws Ann. 691.1501(1) ("A physician, physician's assistant, registered professional nurse,
licensed practical nurse, or licensed EMS provider who in good faith renders emergency care * * * is not
liable for civil damages * * *"); Mo.Stat.Ann. 537.037.1(1) ("Any physician or surgeon, registered
professional nurse or licensed practical nurse * * * and any person licensed as a mobile emergency
medical technician * * * may * * * render emergency care or assistance * * * at the scene of an emergency *
* *, and shall not be liable for any civil damages * * *"). (Emphases added.)

II. Any Person Rendering Medical Assistance

{¶ 22} Four states have Good Samaritan statutes that apply to any person but expressly limit protection
from liability to the rendering of medical aid through use of terms such as "first aid," "medical attention," and
"health care treatment." See Idaho Code Ann. 5-330 ("That no action shall lie or be maintained for civil
damages * * * against any person * * * who * * *, being at, or stopping at the scene of an accident, offers
and administers first aid or medical attention * * *"); N.C.Gen.Stat.Ann. 90-21.14(a) ("Any person * * * who *
* * renders first aid or emergency health care treatment to a person who is unconscious, ill or injured * * *
shall not be liable for damages * * *"); Okla.Stat.Ann., Title 76, 5(a)(2) ("any person who * * * renders or
attempts to render emergency care consisting of artificial respiration, restoration of breathing, or preventing
or retarding the loss of blood, or aiding or restoring heart action or circulation of blood to the victim or
victims of an accident or emergency * * * shall not be liable for any civil damages"); Or.Rev.Stat.Ann.
30.800(2) ("No person may maintain an action for damages for injury, death or loss that results from acts or
omissions of a person while rendering emergency medical assistance * * *"). (Emphases added.)

 III. Anyone Rendering Emergency Care, Treatment,

232*232

or Other Assistance
{¶ 23} The remaining states have Good Samaritan statutes that broadly apply to any person who renders
emergency care, treatment, or other kinds of assistance without an express requirement that those acts be
medical in nature. See Ala.Code 6-5-332(g) ("Any person, who * * * renders emergency care at the scene
of an accident or emergency * * * shall not be liable for any civil damages * * *"); Alaska Stat.Ann.
09.65.090(a) ("A person * * * who renders emergency care or emergency counseling * * * is not liable for
civil damages * * *"); Ariz.Rev.Stat.Ann. 32-1471 ("Any health care provider * * * or any other
person who renders emergency care at a public gathering or at the scene of an emergency occurrence * * *
shall not be liable for any civil or other damages * * *"); Ark.Code Ann. 17-95-101(b) ("Any person who is
not a health care professional who is present at an emergency or accident scene and who * * * [p]roceeds
to lend emergency assistance or service * * * shall not be held liable in civil damages * * *") (subdivision (a)
of the statute covers health care professionals); Cal.Health & Safety Code 1799.102(b)(2) ("no person who
* * * renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be
liable for civil damages * * *"); Colo.Rev.Stat.Ann. 13-21-108(1) ("Any person licensed as a physician and
surgeon * * * or any other person, who * * * renders emergency care or emergency assistance * * * at the
place of an emergency or accident * * * shall not be liable for any civil damages * * *"); Del.Code Ann., Title
16, 6801(a) ("any person who * * * renders first aid, emergency treatment or rescue assistance * * * shall
not be liable for damages * * *"); Fla.Stat.Ann. 768.13(2)(a) ("Any person * * * who * * * renders emergency
care or treatment * * * in direct response to emergency situations * * * shall not be held liable for any civil
damages * * *"); Ga.Code Ann. 51-1-29(a) ("Any person * * * who * * * renders emergency care at the
scene of an accident or emergency * * * shall not be liable for any civil damages * * *"); Haw.Rev.Stat.Ann.
663-1.5(a) ("Any person who * * * renders emergency care * * * at the scene of an accident or emergency *
* * shall not be liable for any civil damages * * *"); Ind.Code Ann. 34-30-12-1(b) ("a person who * *
* renders emergency care at the scene of the emergency or accident is immune from civil liability * * *");
Iowa Code Ann. 613.17(1) ("A person, who * * * renders emergency care or assistance * * * shall not be
liable for any civil damages * * *"); Kan.Stat.Ann. 65-2891b ("Any person who is not a health care provider *
* * who * * * renders emergency care or assistance * * * at the scene of an emergency or accident shall not
be liable for any civil damages * * *") (Kan.Stat.Ann. 65-2891 contains a similar provision for health care
providers); La.Stat.Ann., Title 9, 2793(A) ("No person who * * * renders emergency care, first aid or
rescue at the scene of an emergency * * * shall be liable for any civil damages * * *"); Me.Rev.Stat.Ann.,
Title 14, 164 ("any person who 233*233 * * * renders first aid, emergency treatment or rescue assistance * *
* shall not be liable for damages * * *"); Md.Code Ann., Courts & Judicial Proceedings, 5-603(c) ("An
individual * * * is not civilly liable for any act or omission in providing assistance or medical aid * * *");
Mass.Gen.Laws Ann., Chapter 112, 12V ("Any person who * * * attempts to render emergency care * * *
shall not be liable * * *"); Minn.Stat.Ann. 604A.01(2)(a) ("A person who * * * renders emergency care,
advice, or assistance at the scene of an emergency * * * is not liable for any civil damages * * *");
Miss.Code Ann. 73-25-37(1) ("No duly licensed, practicing physician, physician assistant, dentist, * * * or
any other person who * * * renders emergency care to any injured person at the scene of an emergency * *
* shall be liable for any civil damages * * *"); Mont.Code Ann. 27-1-714(1) ("Any person licensed as a
physician and surgeon * * * or any other person who * * * renders emergency care or assistance * * * at the
scene of an emergency or accident is not liable for any civil damages * * *"); Neb.Rev.Stat.Ann. 25-21,186
("No person who renders emergency care at the scene of an accident or other emergency * * * shall be
held liable for any civil damages * * *"); Nev.Rev.Stat.Ann. 41.500(1) ("any person * * * who renders
emergency care or assistance in an emergency * * * is not liable for any civil damages * * *");
N.H.Rev.Stat.Ann. 508:12(1) ("If any person * * * renders emergency care at the place of the happening of
an emergency * * * the person who renders the care is not liable in civil damages * * *"); N.J.Stat.Ann.
2A:62A-1 ("Any individual * * * who * * * renders emergency care at the scene of an accident or emergency
* * * shall not be liable for any civil damages * * *"); N.M.Stat.Ann. 24-10-3 ("No person who comes to
the aid or rescue of another person by providing care or assistance * * * at or near the scene of an
emergency * * * shall be held liable for any civil damages * * *"); N.Y.Public Health Law 3000-a(1) ("any
person who * * * renders first aid or emergency treatment at the scene of an accident * * * shall not be liable
for damages * * *"); N.D.Code Ann. 32-03.1-02 ("No person * * * who renders aid or assistance necessary
or helpful in the circumstances * * * may be named as a defendant or held liable in any personal injury civil
action * * *"); 42 Pa.Cons.Stat. 8332(a) ("Any person * * * who * * * renders emergency care, treatment, first
aid, or rescue at the scene of an emergency * * * shall not be liable for any civil damages * * *");
R.I.Gen.Laws Ann. 9-1-27.1 ("No person who * * * renders emergency assistance * * * shall be liable for
civil damages * * *"); S.C.Code Ann. 15-1-310 ("Any person, who * * * renders emergency care at the
scene of an accident or emergency * * * shall not be liable for any civil damages * * *"); S.D.Codified Laws
20-9-4.1 ("No peace officer, conservation officer, member of any fire department, police department and
their first aid, rescue or emergency squad, or any citizen acting as such as a volunteer, or any other
person is liable * * * in the course of their rendering in good faith, any 234*234 emergency care and
services during an emergency * * *"); Tenn.Code Ann. 63-6-218(b) ("Any person * * * shall not be liable to
victims or persons receiving emergency care for any civil damages as a result of any act or omission by
such person in rendering the emergency care * * *"); Tex.Civ.Practice & Remedies Code Ann. 74.151(a)
("A person who * * * administers emergency care is not liable in civil damages for an act performed during
the emergency * * *"); Utah Code Ann. 78B-4-501(1) ("A person who renders emergency care at or near
the scene of, or during an emergency * * * is not liable for any civil damages * * *"); Vt.Stat.Ann., Title 12,
519(b) ("A person who provides reasonable assistance [to a person "exposed to grave physical harm"]
shall not be liable in civil damages * * *"); Va.Code Ann. 8.01-225(A)(1) ("Any person who * * * renders
emergency care or assistance * * * at the scene of an accident, fire, or any life-threatening emergency * * *
shall not be liable for any civil damages * * *"); Wash.Rev.Code Ann. 4.24.300(1) ("Any person, * * * who * *
* renders emergency care at the scene of an emergency or who participates in transporting * * * therefrom
an injured person * * * for emergency medical treatment shall not be liable for civil damages * * *");
W.Va.Code Ann. 55-7-15 ("No person * * * who * * * renders emergency care at the scene of an accident *
* * shall be liable for any civil damages * * *"); Wisc.Stat.Ann. 895.48(1) ("any person who renders
emergency care at the scene of an emergency or accident * * * shall be immune from civil liability");
Wyo.Stat.Ann. 1-1-120(a) ("Any person licensed as a physician and surgeon * * * or any other person, who
* * * renders emergency care or assistance * * * at the place of an emergency or accident, is not liable for
any civil damages * * *"). (Emphases added.)

Law and Analysis

Ohio's Good Samaritan Statute
{¶ 24} R.C. 2305.23 provides:

No person shall be liable in civil damages for administering emergency care or treatment at the scene of an
emergency outside of a hospital, doctor's office, or other place having proper medical equipment, for acts
performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.
Nothing in this section applies to the administering of such care or treatment where the same is rendered
for remuneration, or with the expectation of remuneration, from the recipient of such care or treatment or
someone on his behalf. The administering of such care or treatment by one as a part of his duties as a paid
member of any organization of law 235*235 enforcement officers or fire fighters does not cause such to be
a rendering for remuneration or expectation of remuneration.

{¶ 25} Regarding the first question — whether R.C. 2305.23 applies only to health care professionals — the
statute expressly states, "No person shall be liable in civil damages * * *." (Emphasis added.) If the
legislature had intended that this statute apply only to health care professionals, it could have expressed its
intent by using a more limiting phrase such as "no health care professional shall be liable in civil damages"
or by naming the categories of individuals it intended to exclude from liability, e.g., physicians or nurses.
And Ohio's General Assembly knows how to express its intent in this regard because in R.C. 2305.231, the
statute immediately following R.C. 2305.23, it stated:

(B) No physician who volunteers the physician's services as a team physician or team podiatrist to a
school's athletics program, no dentist who volunteers the dentist's services as a team dentist to a school's
athletics program, and no registered nurse who volunteers the registered nurse's services as a team nurse
to a school's athletics program is liable in damages in a civil action for administering emergency medical
care, emergency dental care, other emergency professional care, or first aid treatment to a participant in an
athletic event involving the school, at the scene of the event * * *, or for acts performed in administering the
care or treatment, unless the acts of the physician, dentist, or registered nurse constitute willful or wanton
misconduct.

(Emphasis added.)

{¶ 26} Obviously, the General Assembly did not similarly limit the scope of Ohio's Good Samaritan statute;
rather, by stating that no person shall be liable in civil damages, it expressed its intent that the statute apply
to anyone who otherwise meets the statutory requirements. Compare Mendenhall v. Akron, 117 Ohio St.3d
33, 2008-Ohio-270, 881 N.E.2d 255, ¶ 25 (by using the phrase "[n]o person shall operate a motor vehicle"
in R.C. 4511.21(A), the General Assembly "extends [the statute's] application to the citizens of the state
generally and does not single out any group or class for different treatment"). Thus, Ohio joins the majority
of states that extend application of their Good Samaritan legislation to all persons and not only to those in
the health care profession.

{¶ 27} We recognize that the title of the act containing the original version of Ohio's Good Samaritan statute
states its purpose: "To enact section 2305.23 of the Revised Code, relative to the liability of physicians and
nurses for emergency treatment." Am.Sub.S.B. No. 14, 130 Ohio Laws 1424. However, while the
title 236*236 of an act is sometimes helpful in arriving at legislative intent, it is not dispositive. Columbus
Bldg. & Constr. Trades Council v. Moyer, 163 Ohio St. 189, 200, 126 N.E.2d 429 (1955) . "The title of an act
is never employed to defeat the clear intent of the Legislature." Wachendorf v. Shaver, 149 Ohio St. 231,
243, 78 N.E.2d 370 (1948).

{¶ 28} Ohio's Good Samaritan statute applies to any person who administers emergency care or treatment
at the scene of an emergency including but not limited to health care professionals.

{¶ 29} Regarding the second question — whether the phrase "administering emergency care" is limited to
medical attention or more broadly includes other forms of assistance — because the legislature did not
define any of these terms in R.C. 2305.23, we "look to the plain and ordinary meaning of the words." Hewitt
v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, ¶ 17.

{¶ 30} The term "administer" means, inter alia, "[f]urnish, supply, give." 1 Shorter Oxford English
Dictionary 28 (5th Ed.2002). See also Webster's Third New International Dictionary 27 (1986) (definition of
"administer" includes "to mete out").
{¶ 31} An "emergency" is "an unforeseen combination of circumstances or the resulting state that calls for
immediate action." Webster's at 741. See also 1 Shorter Oxford at 814 (an emergency is "[a] situation, esp.
of danger or conflict, that arises unexpectedly and requires urgent action"); Utah Code Ann. 78B-4-501(1)
(for purposes of Utah's Good Samaritan statute, emergency "means an unexpected occurrence involving
injury, threat of injury, or illness to a person or the public, including motor vehicle accidents, disasters,
actual or threatened discharges, removal, or disposal of hazardous materials, and other accidents or
events of a similar nature").

{¶ 32} The dissenting opinion of the Chief Justice objects to the definition of an "emergency" including the
phrase "an unforeseen combination of circumstances." That dissenting opinion notes that some injuries are
"wholly foreseeable, but nonetheless, they require immediate, urgent care," opinion at ¶ 51, and "would not
limit an `emergency' for purposes of R.C. 2305.23 to those situtations that are unforeseeable," id. at ¶ 61. It
uses the terms "unforeseen" and "unforeseeable" as if they are interchangeable. They are not.

{¶ 33} "Unforeseen" means unexpected — a term used in several definitions of an "emergency" relied upon
by the dissenting opinion. Webster's at 2496. In contrast, "unforeseeable" means "incapable of being
foreseen, foretold, or anticipated." Id. A combination of circumstances may be unforeseen or unexpected
by the individuals experiencing them even though those circumstances were capable of being foreseen.

237*237 {¶ 34} "Care" includes "responsibility for or attention to safety and well-being." Webster's at
338. See also 1 Shorter Oxford at 345 ("care" includes "[s]erious attention"); Willingham v. Hudson, 274
Ga.App. 200, 204, 617 S.E.2d 192 (2005), quoting Anderson v. Little & Davenport Funeral Home, 242 Ga.
751, 753, 251 S.E.2d 250 (1978) (applying definition of "emergency care" used by the Georgia Supreme
Court in a "similar statutory context," i.e., "`the performance of necessary personal services during an
unforeseen circumstance that calls for immediate action'"); Utah Code Ann. 78B-4-501(1) (stating that for
purposes of Utah's Good Samaritan statute, emergency care "includes actual assistance or advice offered
to avoid, mitigate, or attempt to mitigate the effects of an emergency").

{¶ 35} To construe the phrase "administering emergency care" to mean only emergency medical care
would require this court to add a descriptive adjective to the statute. Notably, in Van Horn v. Watson, 45
Cal.4th 322, 325-326, 331, 86 Cal.Rptr.3d 350, 197 P.3d 164 (2008), that is what the Supreme Court of
California did when it determined that the phrase "emergency care" in that state's Good Samaritan statute
meant emergency medical care at the scene of a medical emergency, despite the fact that the legislature
had not used that limiting adjective. The California legislature amended the statute the following year to
clarify that emergency care meant "emergency medical or nonmedical care." (Emphasis added.) Cal.Health
& Safety Code 1799.102(b)(2).

{¶ 36} Similarly, the Ohio General Assembly used the phrase "emergency care," not
"emergency medical care," and therefore, its intent is more expansive and includes both medical and
nonmedical emergency care.

{¶ 37} We recognize that footnote five in Primes, 43 Ohio St.2d at 201, 331 N.E.2d 723, states that R.C.
2305.23 "singles out a group of benevolently-disposed individuals for immunity from negligent injury to
persons while rendering medical treatment during the exigencies of an emergency." (Emphasis added.) In
that case, however, we determined only that R.C. 4515.02, Ohio's guest statute, was unconstitutional and
did not address the scope or application of the Good Samaritan statute.

{¶ 38} Thus, the phrase "administering emergency care" as used in Ohio's Good Samaritan statute includes
rendering medical and any other form of assistance to the safety and well-being of another when the result
of an unforeseen combination of circumstances calls for immediate action. Compare Wallace v. Hall, 145
Ga.App. 610, 610-611, 244 S.E.2d 129 (1978) (holding that a former version of Georgia's Good Samaritan
statute, which is similar to the current version and protected "[a]ny person" who "in good faith renders
emergency care at the scene of an accident or emergency," applied to a homeowner who, when a
repairman was injured in a fall at her house, aggravated his injuries 238*238 by transporting him
home); Held v. Rocky River, 34 Ohio App.3d 35, 38-39, 516 N.E.2d 1272 (8th Dist.1986)  (holding that an
off duty firefighter rendered emergency care for purposes of R.C. 2305.23 in moving another firefighter who
was lying unconscious under a stream of rushing water).

{¶ 39} A careful reading of R.C. 2305.23 reveals that the statute contains two significant prepositional
phrases: "No person shall be liable in civil damages [1] for administering emergency care or treatment at
the scene of an emergency * * * [2] for acts performed at the scene of such emergency * * *." When a court
interprets the meaning of a statute, it "must give effect to all of the statute's words." Stolz v. J & B Steel
Erectors, Inc., 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, ¶ 9. The latter prepositional phrase in
R.C. 2305.23 precludes liability for any acts performed at the scene of an emergency and further supports
the conclusion that the General Assembly intended for the phrase "administering emergency care" to
broadly include nonmedical care. In this regard, Ohio's statute is similar to statutes of other states that
broadly apply to any type of assistance given at the scene of an emergency. Compare Ark.Code Ann. 17-
95-101(b) (protecting anyone who lends "emergency assistance or service"); Iowa Code Ann. 613.17(1)
(protecting anyone who renders "emergency care or assistance").

{¶ 40} The uncontested facts in this case show that Reese performed acts at the scene of an emergency
that constituted administering "emergency care" to Carter. Carter slipped, his leg became wedged between
a loading dock and a trailer, and he could not free himself from a situation that resulted from an unforeseen
combination of circumstances, called for immediate action, and thus constituted an "emergency" for
purposes of R.C. 2305.23. In responding, Reese administered care and performed an act at the scene of
the emergency by attempting to move the truck in an effort to free Carter's leg, and there is no allegation
that his conduct was willful or wanton. Accordingly, R.C. 2305.23 applies to Reese, and he is not liable in
civil damages to the Carters.

Conclusion
{¶ 41} Ohio's Good Samaritan statute applies to any person who administers emergency care or treatment
at the scene of an emergency including but not limited to health care professionals. Moreover, the phrase
"administering emergency care" in the statute is not limited to medical acts and includes rendering medical
and any other form of assistance to the safety and well-being of another when the result of an unforeseen
combination of circumstances calls for immediate action. Because Reese performed acts at the scene of
an emergency in administering emergency care to Carter and there is no allegation of willful
or 239*239 wanton misconduct, pursuant to R.C. 2305.23, he is not liable in civil damages. Accordingly, we
affirm the judgment of the court of appeals.

Judgment affirmed.

KENNEDY, FRENCH, and O'NEILL, JJ., concur.

O'CONNOR, C.J., dissents, with an opinion joined by LANZINGER, J.

PFEIFER, J., dissents, with an opinion.

O'CONNOR, C.J., dissenting.

{¶ 42} I agree with the majority's holding that R.C. 2305.23 applies to any person who administers
emergency care or treatment. But I dissent from the remainder of the opinion and syllabus, including the
majority's holding that an "emergency" for purposes of R.C. 2305.23 requires "an unforeseen combination
of circumstances" and its affirmation of the use of summary judgment to determine the applicability of the
statute to the facts of this case.
{¶ 43} I would hold that the definition of an "emergency" includes sudden events or circumstances that
require urgent or immediate attention or action, regardless of whether the events were foreseeable. And I
would hold that questions about the application of R.C. 2305.23 to the facts presented in a given case are
typically questions of fact for the jury or other fact-finder.

ANALYSIS
Emergencies are not limited to unforeseeable
circumstances and foreseeability is irrelevant for
purposes of R.C. 2305.23
{¶ 44} The portion of Ohio's Good Samaritan statute that is relevant to this appeal states: "No person shall
be liable in civil damages for administering emergency care or treatment at the scene of an emergency * *
*, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton
misconduct." R.C. 2305.23.

{¶ 45} "There is no definition of `emergency medical care or treatment' in the Revised Code." Campbell v.
Colley, 113 Ohio App.3d 14, 19, 680 N.E.2d 201 (4th Dist.1996) . When a statute does not define a term,
courts are to give the term its usual, normal, or customary meaning. Colbert v. Cleveland, 99 Ohio St.3d
215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 12; R.C. 1.42. "The process of judicial interpretation of a statute
involves, `reading undefined words and phrases in context and construing them in accordance with the
rules of grammar and common usage.'" Wolf v. E. Liverpool School Dist. Bd. of Edn., 7th Dist. Columbiana
No. 03 CO 5, 2004-Ohio-2479, ¶ 40, quoting State ex rel. Portage 240*240 Lakes Edn. Assn., OEA/NEA v.
State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 36.

{¶ 46} Here, the majority defines "administering emergency care" according to the definitions of
"emergency" found in some dictionaries. See, e.g., majority opinion at ¶ 31. The majority adopts those
definitions, which include the legal concept of foreseeability, and then sets forth a definition of
"administering emergency care" as "rendering medical and any other form of assistance to the safety and
well-being of another when the result of an unforeseen combination of circumstances calls for immediate
action." (Emphasis added.) Majority opinion at paragraph two of the syllabus. But the majority is not mindful
that while determining legislative intent primarily involves an analysis of the statutory language, it is also
necessary to consider the legislature's purpose in enacting the law. Fisher v. Hasenjager, 116 Ohio St.3d
53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20, citing State ex rel. Watkins v. Eighth Dist. Court of Appeals,  82
Ohio St.3d 532, 535, 696 N.E.2d 1079 (1998).

{¶ 47} With that purpose in mind, I would not limit the statutory term "emergency care" to an unforeseen
combination of circumstances. Several reasons support a definition of "emergency" that does not
incorporate the concept of foreseeability.

The urgency of a situation, not its foreseeability, is

critical to defining an emergency in a manner consistent
with the purpose of the statute
{¶ 48} First, we must be cognizant that the purpose of the statute is to promote the public policy of
encouraging the rendering of aid to those in dire circumstances. See Primes v. Tyler, 43 Ohio St.2d 195,
201, 331 N.E.2d 723 (1975), fn. 5 (describing R.C. 2305.23's immunity as an effort "to further a legitimate
legislative objective of providing emergency medical assistance to injured persons where delay might result
in death or great bodily injury"). The majority correctly holds that the statute is intended to shield all those
who give aid or assistance and not to limit the protections of the statute to people with medical education,
training, and experience. See majority opinion at paragraph one of the syllabus.

{¶ 49} But given the broad scope of the statute and its intent to shield well-intended individuals from liability
for rendering aid, it is unlikely that the General Assembly intended to incorporate a legal concept
(foreseeability) into the definition of emergency because the average person is unlikely to have a sufficient
understanding of the legal aspects of foreseeability. Rather, it is more likely that the legislative intent was to
rely on commonly used and understood words, like "sudden," "unexpected," "urgent," and "immediate," to
define an emergency.

241*241 {¶ 50} Requiring that the circumstances giving rise to the "emergency" be unforeseeable is not
reflective of the legislative intent. And the incorporation of foreseeability into the understanding of an
"emergency" could lead to confusion for both Ohio's bench and bar as well as for its ball parks.

{¶ 51} Consider a high school's varsity football team playing on a Friday night in autumn. As those who
attend games often see, high schools across Ohio retain ambulances for football games because players
and spectators can sustain serious injuries during the game. Indeed, it is now widely understood that
players can suffer concussions during games. Lueke, High School Athletes and Concussions, 32
J.Leg.Med. 483, 485, 501 (2011) (noting that "[c]oncussions are inevitable in high school sports" and that
there are 300,000 sports-related concussions each year in the United States, that concussions are twice as
likely to occur during games than in practice, and that the majority of concussions in high school athletics
occur while students play football, soccer, and basketball). Those injuries are thus wholly foreseeable, but
nonetheless, they require immediate, urgent care. Id. at 489-490 (allowing a player with a concussion to
return to the field can lead to long-term neuropsychological dysfunction, severe disability, and death).
Under the majority's definition, a concussion at a football game might not qualify as an "emergency."

{¶ 52} Similarly, we expect that there will be lifeguards on duty at public swimming pools. And the presence
of lifeguards signifies the presence of potential emergencies, including drowning and injuries sustained
from diving. In other words, injuries and life-threatening conditions are foreseeable at water parks and
pools, and those injuries and conditions require immediate action.

{¶ 53} In construing Ohio's Good Samaritan statute, we must be mindful that the salient inquiry in cases
involving R.C. 2305.23 and other "emergencies" is the urgency of the situation, not the foreseeability of it.
When "[l]ife or wholeness of body may be in the balance," we should not radically narrow the definition of
emergency. Mary Day Nursery, Children's Hosp. v. Akron, 90 Ohio Law Abs. 457, 189 N.E.2d 745, 750
(C.P.1961).

{¶ 54} "Within the [Good Samaritan] Act's intended meaning an emergency occurs whenever a stranger
appears (or may be perceived) to be ill or in need of succor." (Emphasis deleted.) Jackson v. Mercy Health
Ctr., Inc., 1993 OK 155, 864 P.2d 839, 845. "[L]imited and technical definitions given to the concepts of
`emergency' and `emergency care' frustrate the purpose of Good Samaritan legislation," McDowell v.
Gillie, 2001 ND 91, 626 N.W.2d 666, ¶ 18, and should be avoided. This is particularly true given the intent
of Good Samaritan laws, which is to abrogate the common-law rescue doctrine and to encourage people to
risk helping strangers in need of emergency assistance without fear of liability, even when they have no
duty to render aid. "Generally, a bystander has no duty to 242*242 provide affirmative aid to an injured
person, even if the bystander has the ability to help." Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173,
1178 (3d Cir.1994), citing Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of
Torts, Section 56, at 375 (5th Ed.1984); McDowell at ¶ 6 ("In an attempt to eliminate the perceived
inadequacies of the common law rules, all states have enacted some form of Good Samaritan legislation to
protect individuals from civil liability for any negligent acts or omissions committed while voluntarily
providing emergency aid or assistance").
{¶ 55} But under the majority's definition of an emergency, the foreseeable nature of injuries, including
those at football games and swimming pools, renders them outside the scope of R.C. 2305.23's
protections. It is inconceivable that the General Assembly intended such a result. And if such a limitation
was desired, the legislature could have incorporated it into the statute. It is the legislature's province to do
so; I would not limit the term "emergency" in R.C. 2305.23 by judicial fiat. [1] Colbert, 99 Ohio St.3d 215,
2003-Ohio-3319, 790 N.E.2d 781, at ¶ 15.

To the extent that dictionaries have utility in defining

"emergency," we should look to those definitions that
existed when the General Assembly enacted R.C. 2305.23
{¶ 56} Second, to the extent that dictionary definitions of "emergency" are illustrative of the legislative
intent, we must be mindful that a judge or justice often has several versions of a definition from which to
choose. While the majority correctly cites certain definitions of which it approves, other dictionaries define
the term "emergency" differently.[2] Thus, we should rely on dictionary 243*243 definitions that were
contemporaneous with the passage of R.C. 2305.23 in 1977 and that a legislator could have consulted.

{¶ 57} The Sixth District's definition of "emergency" in Goebel's Emergency Med. Serv., Inc. v. Sandusky
Cty. Bd. of Commrs., 58 Ohio App.3d 25, 567 N.E.2d 1330 (6th Dist.1989)  based on the definition of
"emergency" as it appeared in a 1983 dictionary, is more consistent with the common meaning of the word
at the time of the statute's enactment. And that definition — "`a sudden or unexpected occurrence * * *
demanding prompt action; urgent necessity'" — omits the notion of foreseeability. See Id. at 26,
quoting Webster's New Universal Unabridged Dictionary 593 (2d Ed.1983).

Ohio courts interpret "emergency" without reference to

foreseeability in other statutory schemes
{¶ 58} Third, when the term "emergency" is undefined in a statute, Ohio's courts often have interpreted the
word without reference to foreseeability.

{¶ 59} In the context of a statute requiring "emergency medical or hospital care" for the indigent, this court
has recognized that "commonly understood, an emergency is a sudden or unexpected occurrence which
demands immediate action." (Emphasis sic.) Mansfield Gen. Hosp. v. Richland Cty. Bd. of Commrs., 170
Ohio St. 486, 166 N.E.2d 224 (1960), paragraph three of the syllabus. And as the Tenth District succinctly
explained in another context,

[B]ecause the term "emergency" in R.C. 2917.13(A)(1) is undefined by statute, the term is given its
common, everyday meaning. The common dictionary definition of "emergency" is "`"an unexpected
situation or sudden occurrence of a serious and urgent nature that demands immediate attention."'"

State v. Zaleski, 10th Dist. Franklin No. 10AP-101, 2010-Ohio-5557, ¶ 12, quoting State v. Blocker, 10th
Dist. Franklin No. 06AP-313, 2007-Ohio-144, ¶ 51, quoting Wolf, 2004-Ohio-2479, ¶ 40, quoting American
Heritage Dictionary 448 (2d College Ed.1922).

244*244 {¶ 60} When defining the term "emergency call" for purposes of political-subdivision liability under
R.C. 2744.02(B)(1), our appellate courts have recognized that the definition is a broad one and one that
they are "reluctant to abridge." Carter v. Columbus, 10th Dist. Franklin No. 96APE01-103, 1996 WL
465252, *3 (Aug. 15, 1996). See also Bates v. Cincinnati, 1st Dist. Hamilton Nos. C-960659 and A-
9306972, 1997 WL 684840, *2 (Oct. 31, 1997) (describing the "open-ended definition of `emergency call'
as provided by the legislature" in R.C. 2744.01(A)). Similarly, Ohio courts broadly define "emergency" when
characterizing situations to which emergency personnel respond. See, e.g., Campbell, 113 Ohio App.3d at
20, 680 N.E.2d 201, citing Moore v. Columbus, 98 Ohio App.3d 701, 706, 649 N.E.2d 850 (10th
Dist.1994) (definition of "emergency" is open-ended and not limited to inherently dangerous situations or
situations in which human life is in danger); Goebel's, 58 Ohio App.3d at 26, 567 N.E.2d 1330 (term
"emergency patient" does not require that the patient's condition be life-threatening). See also Radecki v.
Lammers, 15 Ohio St.2d 101, 103, 238 N.E.2d 545 (1968)  (in wrongful-death case in which the "sudden
emergency" doctrine was implicated, finding no error in jury instruction stating that "[a]n emergency arises
when there is a sudden or unexpected occurrence, or combination of occurrences which demand prompt
action" when the facts supported the instruction); Miller v. McAllister, 169 Ohio St. 487, 160 N.E.2d 231
(1959), paragraph six of the syllabus ("In a negligence action, the so-called `emergency doctrine' applies
only where there was a sudden and unexpected occurrence of a transitory nature which demanded
immediate action without time for reflection or deliberation and does not comprehend a static condition
which lasted over a period of time").

{¶ 61} Consistent with the broad judicial definitions of "emergency" in other Ohio statutory schemes, I would
not limit an "emergency" for purposes of R.C. 2305.23 to those situations that are unforeseeable.

Other state courts interpret "emergency" in their Good

Samaritan statutes without reference to foreseeability
{¶ 62} Notably, other states have not limited the term "emergency" in their Good Samaritan laws to
circumstances that are unforeseeable. Instead, they focus both on the nature of an emergency and the
purpose of Good Samaritan laws. As a California appellate court explained,

An emergency within the meaning of the Good Samaritan statutes exists when there is an urgent medical
circumstance of so pressing a character that some kind of action must be taken. It would seem obvious that
in determining whether a patient's condition constitutes such an emergency the trier of fact must consider
the gravity, the certainty, and the immediacy of the consequences to be expected if no action is taken.
However, 245*245 beyond observing that these are the relevant considerations, the variety of situations
that would qualify as emergencies under any reasonable set of criteria is too great to admit of anything
approaching a bright line rule as to just how grave, how certain, and how immediate such consequences
have to be.

(Citations omitted.) Breazeal v. Henry Mayo Newhall Mem. Hosp., 234 Cal.App.3d 1329, 1338, 286
Cal.Rptr. 207 (1991). See also Newhouse v. Osteopathic Examiners Bd., 159 Cal.App.2d 728, 735, 324
P.2d 687 (1958) (an emergency exists "where the exigency is of so pressing a character that some kind of
action must be taken").

{¶ 63} In formulating definitions of "emergency," other courts have effectuated the public policies that drove
the enactment of Good Samaritan laws but recognized the limitations of torts, from which the Good
Samaritan doctrine devolves. For example, in Texas law, "[a]n `emergency' is a condition arising suddenly
and unexpectedly and not proximately caused by any negligent act or omission of the person in question
and which calls for immediate action on his part and without time for deliberation." Eoff v. Hal & Charlie
Peterson Found., 811 S.W.2d 187, 191 (Tex.App.1991),  citing Goolsbee v. Texas & New Orleans RR.
Co., 150 Tex. 528, 243 S.W.2d 386, 388 (1951) . Thus, it is not necessary to use the legal concept of
foreseeability to limit the scope of an "emergency" for purposes of R.C. 2305.23.

Summary judgment was entered improperly by the trial

court and affirmed by the appellate court; the
determination of emergency is a question of fact for a jury
{¶ 64} As the opinion of my fellow dissenter illustrates, reasonable minds may differ whether an emergency
was extant in the cause before us. That dissenting opinion illustrates why the determination whether an
emergency exists for purposes of R.C. 2305.23 is a question of fact for the jury rather than a question of
law for the judge.

{¶ 65} Although this court has never directly addressed this issue, our trial courts correctly recognize that,
at least in some cases, whether the statutory elements of R.C. 2305.23 have been proven are questions for
the jury. See, e.g., Dayton v. Brennan, 64 Ohio Law Abs. 525, 112 N.E.2d 837 (M.C.1952) (whether an
emergency existed that would exempt an officer from speeding laws is a question of fact for the
jury). Accord Butler v. Rejon, 9th Dist. Summit No. 19699, 2000 WL 141009 (Feb. 2, 2000) (trial court's
refusal to instruct the jury on the Good Samaritan statute was proper because there was no evidence to
support the defense, indicating that had there been sufficient evidence, the question would have gone to
the jury).

246*246 {¶ 66} Our sister courts have directly addressed the propriety of summary judgment in the context
of Good Samaritan laws. "[T]here is ample authority that [the] applicability [of the Good Samaritan statute]
as to whether an emergency existed or not may be a question of fact for the jury." Jackson v. Mercy Health
Ctr., 1993 OK 155, 864 P.2d at 846 (Summers, J., dissenting) .

{¶ 67} As the Supreme Court of North Dakota has explained, a Good Samaritan act is essentially a defense
that requires the proponent to establish that he or she reasonably believed that an emergency was
occurring, that immediate action was required to prevent death or serious injury, and that he or she could
successfully assist the party in peril. McDowell, 2001 ND 91, 626 N.W.2d 666, ¶ 21. Accord Willingham v.
Hudson, 274 Ga.App. 200, 202-203, 617 S.E.2d 192 (2005)  (noting that the burden of proof rested upon
the proponent of the state's Good Samaritan immunity defense, that he discharged his burden by citing
affidavits, deposition testimony, and medical records and invoices, and that the burden then shifted to the
person who had been in peril to point to specific documentary evidence of record, beyond mere
accusations, that gave rise to a triable issue refuting the applicability of Good Samaritan immunity).

{¶ 68} Evaluating the putative Good Samaritan requires looking at the "overall perception of the nature and
severity of the injury or illness and the total emergency situation." McDowell at ¶ 21. "Thus, the statute
combines elements of the reasonable person standard as well as the aider's subjective state of mind.
Generally, issues involving the reasonable person standard and a person's subjective state of mind are
inappropriate for disposition by summary judgment." Id. And the question whether there is an emergency
that warrants application of a Good Samaritan statute is "an issue of fact not amenable to summary
judgment disposition." Id., citing Travers v. Vaz, 714 A.2d 603, 604 (R.I.1998) . See also Charleston
Station, L.L.C. v. Stephens, Nev.Sup.Ct. No. 63943, 2015 WL 9480322, *3 (Dec. 23, 2015) (in appeal
arising in part from the application of Nevada's Good Samaritan statute, reiterating rule that "[e]xcept in
rare cases where the reasonableness of the defendant's actions is clear, determining whether a defendant
acted reasonably is a question of fact for the jury to decide"); Travers at 604 ("whether there existed an
emergency situation that warranted the application of the Good Samaritan statute is also an issue of
fact"); Jefferson Cty. School Dist. R-1 v. Justus, 725 P.2d 767, 771 (Colo.1986)  (holding that the
application of the "assumed duty" or Good Samaritan doctrine is "obviously not a purely legal question," but
rather, a mixed question of law and fact).

{¶ 69} I would hold, consistent with other states' high and appellate courts, that whether a party has
properly invoked the application of a Good Samaritan statute is a mixed question of law and fact for the
jury, at least in some cases. This is such a case.

247*247  CONCLUSION
{¶ 70} I dissent as to the definition of "emergency" provided by the majority that limits emergencies to
"unforeseeable" situations, and I dissent from its judgment, which affirms the grant of summary judgment
on an issue that should be decided by the jury.

LANZINGER, J., concurs in the foregoing opinion.

PFEIFER, J., dissenting.

{¶ 71} I agree with both paragraphs of the syllabus; they are good statements of law and just, too. But the
majority opinion applies the law a bit too loosely for one simple reason: the situation that confronted Larry
Reese Jr. was not an emergency; therefore, he ought not to be protected by the Good Samaritan statute.

{¶ 72} The Good Samaritan statute does not apply to this case because, although Reese provided care, he
did so when urgent or immediate action was not necessary. Dennis Carter was trapped, to be sure. But he
was not in pain, and he was not in danger. He was inconvenienced and he wanted to get out, but the
situation did not demand urgent action. It demanded rational action, reasoned to fit the situation. Hesitation
or delay was not dangerous to Carter, because he was not in pain and no detrimental change in his
situation was imminent.

{¶ 73} The majority opinion defines an emergency as "`an unforeseen combination of circumstances or the
resulting state that calls for immediate action,'" quoting Webster's Third New International Dictionary 741
(1986). Majority opinion at ¶ 31. "Immediate action" was not needed to help Carter, as it would have been
if, for example, he were about to fall off a building or if the truck had been rolling toward him. What Carter
needed was a person competent to move a tractor-trailer forward without allowing any movement
backward. That did not have to be done immediately or urgently — it needed to be done well.
Unfortunately, it was not done well, because Reese didn't know how to drive a tractor-trailer. Reese should
have sought assistance from a competent driver. Instead, he inserted himself into a situation that did not
demand immediate action and made the situation much worse. Because the situation did not demand
immediate or urgent action, Reese should not be shielded by the Good Samaritan statute, which protects
only those who render care when there is an emergency.

{¶ 74} Although I agree with the syllabus, I disagree with today's judgment. I would reverse the court of
appeals' judgment on the merits. Accordingly, I dissent.

[1] The preferred practice is for a legislature to define the terms in its statutes, including Good Samaritan acts. But given that the
word "emergency" is well known in common parlance, it seems likely that the General Assembly intended it to carry the same broad
meaning in R.C. 2305.23. And if it so chooses, the General Assembly can respond to the court's interpretation of "emergency" in this
case by amendment that makes clear its intent. Indeed, after the California Supreme Court interpreted California's Good Samaritan
law to grant immunity only to persons who render emergency medical care and not to persons who render
emergency nonmedical care, Van Horn v. Watson, 45 Cal.4th 322, 86 Cal.Rptr.3d 350, 197 P.3d 164 (2008),  the California
Legislature amended the statute (Cal.Health & Safety Code, Section 1799.102(a)), to state explicitly that "[n]o person who in good
faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any
civil damages resulting from any act or omission." (Emphasis added.) See Verdugo v. Target Corp., 59 Cal.4th 312, 327, 173
Cal.Rptr.3d 662, 327 P.3d 774 (2014).

[2] Notably, medical dictionaries, which have relevance to the statute given its intent and scope, do not inject notions of foreseeability
into the definition of emergency:

The Attorney's Dictionary of Medicine defines "emergency" as "[a]n urgent demand for medical or surgical action; a medical or
surgical condition demanding immediate action." 2 J.E. Schmidt, Attorney's Dictionary of Medicine E 71 (1999). Stedman's Medical
Dictionary defines "emergency" as "[a]n unlooked for contingency or happening; a sudden demand for action." Stedman's Medical
Dictionary 456 (24th ed.1982).

Rivera v. Arana, 322 Ill.App.3d 641, 650-651, 255 Ill.Dec. 333, 749 N.E.2d 434 (2001),  abrogated on other grounds by Home Star
Bank & Fin. Servs. v. Emergency Care & Health Org., Ltd.,  2014 IL 115526, 379 Ill.Dec. 51, 6 N.E.3d 128.
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