Title

Safeguard Security Agency, Inc. vs. Tangco

Case

G.R. No. 165732

Decision Date

Dec 14, 2006

A security guard's negligence in shooting a bank customer leads to his conviction for homicide, and his employer is held
solidarily liable for damages due to their failure to exercise diligence in the selection and supervision of their employee.

bank customer

solidarily liable

criminal case Show more tags (7)

540 Phil. 86

FIRST DIVISION

[ G.R. NO. 165732, December 14, 2006 ]

SAFEGUARD SECURITY AGENCY, INC., AND ADMER PAJARILLO, PETITIONERS, VS. LAURO TANGCO, VAL TANGCO, VERN
LARRY TANGCO, VAN LAURO TANGCO, VON LARRIE TANGCO, VIEN LARI TANGCO AND VIVIEN LAURIZ TANGCO,
RESPONDENTS

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari filed by Safeguard Security Agency, Inc. (Safeguard) and Admer Pajarillo
(Pajarillo) assailing the Decision[1] dated July 16, 2004 and the Resolution[2] dated October 20, 2004 issued by the Court
of Appeals (CA) in CA-G.R. CV No. 77462.

On November 3, 1997, at about 2:50 p.m., Evangeline Tangco (Evangeline) went to Ecology Bank, Katipunan Branch,
Quezon City, to renew her time deposit per advise of the bank's cashier as she would sign a specimen card. Evangeline, a
duly licensed firearm holder with corresponding permit to carry the same outside her residence, approached security
guard Pajarillo, who was stationed outside the bank, and pulled out her firearm from her bag to deposit the same for
safekeeping. Suddenly, Pajarillo shot Evangeline with his service shotgun hitting her in the abdomen instantly causing
her death.

Lauro Tangco, Evangeline's husband, together with his six minor children (respondents) filed with the Regional Trial
Court (RTC) of Quezon City, a criminal case of Homicide against Pajarillo, docketed as Criminal Case No. 0-97-73806 and
assigned to Branch 78. Respondents reserved their right to file a separate civil action in the said criminal case. The RTC of
Quezon City subsequently convicted Pajarillo of Homicide in its Decision dated January 19, 2000.[3] On appeal to the CA,
the RTC decision was affirmed with modification as to the penalty in a Decision[4] dated July 31, 2000. Entry of
Judgment was made on August 25, 2001.

Meanwhile, on January 14, 1998, respondents filed with RTC, Branch 273, Marikina City, a complaint[5] for damages
against Pajarillo for negligently shooting Evangeline and against Safeguard for failing to observe the diligence of a good
father of a family to prevent the damage committed by its security guard. Respondents prayed for actual, moral and
exemplary damages and attorney's fees.
In their Answer,[6] petitioners denied the material allegations in the complaint and alleged that Safeguard exercised the
diligence of a good father of a family in the selection and supervision of Pajarillo; that Evangeline's death was not due to
Pajarillo's negligence as the latter acted only in self-defense. Petitioners set up a compulsory counterclaim for moral
damages and attorney's fees.

Trial thereafter ensued. On January 10, 2003, the RTC rendered its Decision,[7] the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the heirs of Evangeline Tangco, and against
defendants Admer Pajarillo and Safeguard Security Agency, Inc. ordering said defendants to pay the plaintiffs, jointly and
severally, the following:

ONE HUNDRED FIFTY SEVEN THOUSAND FOUR HUNDRED THIRTY PESOS (P157,430.00), as actual damages

FIFTY THOUSAND PESOS (P50,000.00) as death indemnity;

ONE MILLION PESOS (P1,000,000.00), as moral damages;

THREE HUNDRED THOUSAND PESOS (P300,000.00), as exemplary damages;

THIRTY THOUSAND PESOS (P30,000.00), as attorney's fees; and

costs of suit.

For lack of merit, defendants' counterclaim is hereby DISMISSED.

SO ORDERED. [8]

The RTC found respondents to be entitled to damages. It rejected Pajarillo's claim that he merely acted in self-defense. It
gave no credence to Pajarillo's bare claim that Evangeline was seen roaming around the area prior to the shooting
incident since Pajarillo had not made such report to the head office and the police authorities. The RTC further ruled that
being the guard on duty, the situation demanded that he should have exercised proper prudence and necessary care by
asking Evangeline for him to ascertain the matter instead of shooting her instantly; that Pajarillo had already been
convicted of Homicide in Criminal Case No. 0-97-73806; and that he also failed to proffer proof negating liability in the
instant case.

The RTC also found Safeguard as employer of Pajarillo to be jointly and severally liable with Pajarillo. It ruled that while it
may be conceded that Safeguard had perhaps exercised care in the selection of its employees, particularly of Pajarillo,
there was no sufficient evidence to show that Safeguard exercised the diligence of a good father of a family in the
supervision of its employee; that Safeguard's evidence simply showed that it required its guards to attend trainings and
seminars which is not the supervision contemplated under the law; that supervision includes not only the issuance of
regulations and instructions designed for the protection of persons and property, for the guidance of their servants and
employees, but also the duty to see to it that such regulations and instructions are faithfully complied with.

Petitioners appealed the RTC decision to the CA. On July 16, 2004, the CA issued its assailed Decision, the dispositive
portion of which reads:

IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with the modification that Safeguard
Security Agency, Inc.'s civil liability in this case is only subsidiary under Art. 103 of the Revised Penal Code. No
pronouncement as to costs.[9]In finding that Safeguard is only subsidiarily liable, the CA held that the applicable
provisions are not Article 2180 in relation to Article 2176 of the Civil Code, on quasi-delicts, but the provisions on civil
liability arising from felonies under the Revised Penal Code; that since Pajarillo had been found guilty of Homicide in a
final and executory judgment and is said to be serving sentence in Muntinlupa, he must be adjudged civilly liable under
the provisions of Article 100 of the Revised Penal Code since the civil liability recoverable in the criminal action is one
solely dependent upon conviction, because said liability arises from the offense charged and no other; that this is also
the civil liability that is deemed extinguished with the extinction of the penal liability with a pronouncement that the fact
from which the civil action might proceed does not exist; that unlike in civil liability arising from quasi-delict, the defense
of diligence of a good father of a family in the employment and supervision of employees is inapplicable and irrelevant
in civil liabilities based on crimes or ex-delicto; that Article 103 of the Revised Penal Code provides that the liability of an
employer for the civil liability of their employees is only subsidiary, not joint or solidary.

Petitioners filed their Motion for Reconsideration which the CA denied in a Resolution dated October 20, 2004.

Hence, the instant Petition for Review on Certiorari with the following assignment of errors, to wit:

The Honorable Court of Appeals gravely erred in finding petitioner Pajarillo liable to respondents for the payment of
damages and other money claims.

The Honorable Court of Appeals gravely erred when it applied Article 103 of the Revised Penal Code in holding petitioner
Safeguard solidarily [sic] liable with petitioner Pajarillo for the payment of damages and other money claims.

The Honorable Court of Appeals gravely erred in failing to find that petitioner Safeguard Security Agency, Inc. exercised
due diligence in the selection and supervision of its employees, hence, should be excused from any liability.[10]The
issues for resolution are whether (1) Pajarillo is guilty of negligence in shooting Evangeline; and (2) Safeguard should be
held solidarily liable for the damages awarded to respondents.

Safeguard insists that the claim for damages by respondents is based on culpa aquiliana under Article 2176[11] of the
Civil Code, in which case, its liability is jointly and severally with Pajarillo. However, since it has established that it had
exercised due diligence in the selection and supervision of Pajarillo, it should be exonerated from civil liability.

We will first resolve whether the CA correctly held that respondents, in filing a separate civil action against petitioners
are limited to the recovery of damages arising from a crime or delict, in which case the liability of Safeguard as employer
under Articles 102 and 103 of the Revised Penal Code[12] is subsidiary and the defense of due diligence in the selection
and supervision of employee is not available to it.

The CA erred in ruling that the liability of Safeguard is only subsidiary.

The law at the time the complaint for damages was filed is Rule 111 of the 1985 Rules on Criminal Procedure, as
amended, to wit:

SECTION 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery
of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves
his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34,
and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. Respondents
reserved the right to file a separate civil action and in fact filed the same on January 14, 1998.

The CA found that the source of damages in the instant case must be the crime of homicide, for which he had already
been found guilty of and serving sentence thereof, thus must be governed by the Revised Penal Code.
We do not agree.

An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender,
i.e., (1) civil liability ex delicto, under Article 100 of the Revised Penal Code; and (2) independent civil liabilities, such as
those (a) not arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from
law under Article 31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176
of the Civil Code; or (b) where the injured party is granted a right to file an action independent and distinct from the
criminal action under Article 33 of the Civil Code. Either of these liabilities may be enforced against the offender subject
to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages twice for the same
act or omission or under both causes.[13]

It is important to determine the nature of respondents' cause of action. The nature of a cause of action is determined by
the facts alleged in the complaint as constituting the cause of action.[14] The purpose of an action or suit and the law to
govern it is to be determined not by the claim of the party filing the action, made in his argument or brief, but rather by
the complaint itself, its allegations and prayer for relief.[15]

The pertinent portions of the complaint read:

7. That Defendant Admer A. Pajarillo was the guard assigned and posted in the Ecology Bank a Katipunan Branch,
Quezon City, who was employed and under employment of Safeguard Security Agency, Inc. hence there is employer-
employee relationship between co-defendants.

The Safeguard Security Agency, Inc. failed to observe the diligence of a good father of a family to prevent damage to
herein plaintiffs.

8. That defendant Admer Pajarillo upon seeing Evangeline Tangco, who brought her firearm out of her bag, suddenly
without exercising necessary caution/care, and in idiotic manner, with the use of his shotgun, fired and burst bullets
upon Evangeline M. Tangco, killing her instantly. x x x

...

16. That defendants, being employer and the employee are jointly and severally liable for the death of Evangeline M.
Tangco.[16]Thus, a reading of respondents' complaint shows that the latter are invoking their right to recover damages
against Safeguard for their vicarious responsibility for the injury caused by Pajarillo's act of shooting and killing
Evangeline under Article 2176, Civil Code which provides:

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

The scope of Article 2176 is not limited to acts or omissions resulting from negligence. In Dulay v. Court of Appeals,[17]
we held:

x x x Well-entrenched is the doctrine that Article 2176 covers not only acts committed with negligence, but also acts
which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court
already held that:

"x x x Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also acts
criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against
the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as quasi-delict
only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has
not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that
culpa aquiliana includes voluntary and negligent acts which may be punishable by law." (Emphasis supplied)The civil
action filed by respondents was not derived from the criminal liability of Pajarillo in the criminal case but one based on
culpa aquiliana or quasi-delict which is separate and distinct from the civil liability arising from crime.[18] The source of
the obligation sought to be enforced in the civil case is a quasi-delict not an act or omission punishable by law.

In Bermudez v. Melencio-Herrera,[19] where the issue involved was whether the civil action filed by plaintiff-appellants
is founded on crime or on quasi-delict, we held:

x x x The trial court treated the case as an action based on a crime in view of the reservation made by the offended party
in the criminal case (Criminal Case No. 92944), also pending before the court, to file a separate civil action. Said the trial
court:

It would appear that plaintiffs instituted this action on the assumption that defendant Pontino's negligence in the
accident of May 10, 1969 constituted a quasi-delict. The Court cannot accept the validity of that assumption. In Criminal
Case No. 92944 of this Court, plaintiffs had already appeared as complainants. While that case was pending, the
offended parties reserved the right to institute a separate civil action. If, in a criminal case, the right to file a separate
civil action for damages is reserved, such civil action is to be based on crime and not on tort. That was the ruling in
Joaquin vs. Aniceto, L-18719, Oct. 31, 1964.

We do not agree. The doctrine in the case cited by the trial court is inapplicable to the instant case x x x.

...

In cases of negligence, the injured party or his heirs has the choice between an action to enforce the civil liability arising
from crime under Article 100 of the Revised Penal Code and an action for quasi-delict under Article 2176-2194 of the
Civil Code. If a party chooses the latter, he may hold the employer solidarily liable for the negligent act of his employee,
subject to the employer's defense of exercise of the diligence of a good father of the family.

In the case at bar, the action filed by appellant was an action for damages based on quasi-delict. The fact that appellants
reserved their right in the criminal case to file an independent civil action did not preclude them from choosing to file a
civil action for quasi-delict.[20] (Emphasis supplied)Although the judgment in the criminal case finding Pajarillo guilty of
Homicide is already final and executory, such judgment has no relevance or importance to this case.[21] It would have
been entirely different if respondents' cause of action was for damages arising from a delict, in which case the CA is
correct in finding Safeguard to be only subsidiary liable pursuant to Article 103 of the Revised Penal Code.[22]

As clearly shown by the allegations in the complaint, respondents' cause of action is based on quasi-delict. Under Article
2180 of the Civil Code, when the injury is caused by the negligence of the employee, there instantly arises a presumption
of law that there was negligence on the part of the master or the employer either in the selection of the servant or
employee, or in the supervision over him after selection or both. The liability of the employer under Article 2180 is direct
and immediate. Therefore, it is incumbent upon petitioners to prove that they exercised the diligence of a good father of
a family in the selection and supervision of their employee.

We must first resolve the issue of whether Pajarillo was negligent in shooting Evangeline.
The issue of negligence is factual in nature. Whether a person is negligent or not is a question of fact, which, as a general
rule, we cannot pass upon in a petition for review on certiorari, as our jurisdiction is limited to reviewing errors of law.
[23] Generally, factual findings of the trial court, affirmed by the CA, are final and conclusive and may not be reviewed
on appeal. The established exceptions are: (1) when the inference made is manifestly mistaken, absurd or impossible;
(2) when there is grave abuse of discretion; (3) when the findings are grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the CA is based on misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when the CA, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of fact are conclusions without citation of specific
evidence on which they are based; (8) when the CA manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different conclusion; and (9) when the findings of fact of the CA
are premised on the absence of evidence and are contradicted by the evidence on record. [24]

A thorough review of the records of the case fails to show any cogent reason for us to deviate from the factual finding of
the trial court and affirmed by the CA that petitioner Pajarillo was guilty of negligence in shooting Evangeline.

Respondents' evidence established that Evangeline's purpose in going to the bank was to renew her time deposit.[25]
On the other hand, Pajarillo claims that Evangeline drew a gun from her bag and aimed the same at him, thus, acting
instinctively, he shot her in self-defense.

Pajarillo testified that when Evangeline aimed the gun at him at a distance of about one meter or one arm's length[26]
he stepped backward, loaded the chamber of his gun and shot her.[27] It is however unimaginable that petitioner
Pajarillo could still make such movements if indeed the gun was already pointed at him. Any movement could have
prompted Evangeline to pull the trigger to shoot him.

Petitioner Pajarillo would like to justify his action in shooting Evangeline on his mere apprehension that Evangeline will
stage a bank robbery. However, such claim is befuddled by his own testimony. Pajarillo testified that prior to the
incident, he saw Evangeline roaming under the fly over which was about 10 meters away from the bank[28] and saw her
talking to a man thereat;[29] that she left the man under the fly-over, crossed the street and approached the bank.
However, except for the bare testimony of Pajarillo, the records do not show that indeed Evangeline was seen roaming
near the vicinity of the bank and acting suspiciously prior to the shooting incident. In fact, there is no evidence that
Pajarillo called the attention of his head guard or the bank's branch manager regarding his concerns or that he reported
the same to the police authorities whose outpost is just about 15 meters from the bank.

Moreover, if Evangeline was already roaming the vicinity of the bank, she could have already apprised herself that
Pajarillo, who was posted outside the bank, was armed with a shotgun; that there were two guards inside the bank[30]
manning the entrance door. Thus, it is quite incredible that if she really had a companion, she would leave him under the
fly-over which is 10 meters far from the bank and stage a bank robbery all by herself without a back-up. In fact, she
would have known, after surveying the area, that aiming her gun at Pajarillo would not ensure entrance to the bank as
there were guards manning the entrance door.

Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself a
such as the common experience and observation of mankind can approve as probable under the circumstances. We
have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience.
Whatever is repugnant to these belongs to the miraculous and is outside judicial cognizance.[31]

That Evangeline just wanted to deposit her gun before entering the bank and was actually in the act of pulling her gun
from her bag when petitioner Pajarillo recklessly shot her, finds support from the contentions raised in petitioners'
petition for review where they argued that when Evangeline approached the bank, she was seen pulling a gun from
inside her bag and petitioner Pajarillo who was suddenly beset by fear and perceived the act as a dangerous threat, shot
and killed the deceased out of pure instinct;[32] that the act of drawing a gun is a threatening act, regardless of whether
or not the gun was intended to be used against petitioner Pajarillo;[33] that the fear that was created in the mind of
petitioner Pajarillo as he saw Evangeline Tangco drawing a gun from her purse was suddenly very real and the former
merely reacted out of pure self-preservation.[34]

Considering that unlawful aggression on the part of Evangeline is absent, Pajarillo's claim of self-defense cannot be
accepted specially when such claim was uncorroborated by any separate competent evidence other than his testimony
which was even doubtful. Pajarillo's apprehension that Evangeline will shoot him to stage a bank robbery has no basis at
all. It is therefore clear that the alleged threat of bank robbery was just a figment of Pajarillo's imagination which caused
such unfounded unlawful aggression on his part.

Petitioners argue that Evangeline was guilty of contributory negligence. Although she was a licensed firearm holder, she
had no business bringing the gun in such establishment where people would react instinctively upon seeing the gun; that
had Evangeline been prudent, she could have warned Pajarillo before drawing the gun and did not conduct herself with
suspicion by roaming outside the vicinity of the bank; that she should not have held the gun with the nozzle pointed at
Pajarillo who mistook the act as hold up or robbery.

We are not persuaded.

As we have earlier held, Pajarillo failed to substantiate his claim that Evangeline was seen roaming outside the vicinity of
the bank and acting suspiciously prior to the shooting incident. Evangeline's death was merely due to Pajarillo's
negligence in shooting her on his imagined threat that Evangeline will rob the bank.

Safeguard contends that it cannot be jointly held liable since it had adequately shown that it had exercised the diligence
required in the selection and supervision of its employees. It claims that it had required the guards to undergo the
necessary training and to submit the requisite qualifications and credentials which even the RTC found to have been
complied with; that the RTC erroneously found that it did not exercise the diligence required in the supervision of its
employee. Safeguard further claims that it conducts monitoring of the activities of its personnel, wherein supervisors are
assigned to routinely check the activities of the security guards which include among others, whether or not they are in
their proper post and with proper equipment, as well as regular evaluations of the employees' performances; that the
fact that Pajarillo loaded his firearm contrary to Safeguard's operating procedure is not sufficient basis to say that
Safeguard had failed its duty of proper supervision; that it was likewise error to say that Safeguard was negligent in
seeing to it that the procedures and policies were not properly implemented by reason of one unfortunate event.

We are not convinced.

Article 2180 of the Civil Code provides:

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

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

...

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage.As the employer of Pajarillo, Safeguard is primarily and
solidarily liable for the quasi-delict committed by the former. Safeguard is presumed to be negligent in the selection and
supervision of his employee by operation of law. This presumption may be overcome only by satisfactorily showing that
the employer exercised the care and the diligence of a good father of a family in the selection and the supervision of its
employee.
In the selection of prospective employees, employers are required to examine them as to their qualifications,
experience, and service records.[35] On the other hand, due diligence in the supervision of employees includes the
formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has relations through his or its
employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be
warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To this,
we add that actual implementation and monitoring of consistent compliance with said rules should be the constant
concern of the employer, acting through dependable supervisors who should regularly report on their supervisory
functions.[36] To establish these factors in a trial involving the issue of vicarious liability, employers must submit
concrete proof, including documentary evidence.

We agree with the RTC's finding that Safeguard had exercised the diligence in the selection of Pajarillo since the record
shows that Pajarillo underwent a psychological and neuro-psychiatric evaluation conducted by the St. Martin de Porres
Center where no psychoses ideations were noted, submitted a certification on the Pre-licensing training course for
security guards, as well as police and NBI clearances.

The RTC did not err in ruling that Safeguard fell short of the diligence required in the supervision of its employee,
particularly Pajarillo. In this case, while Safeguard presented Capt. James Camero, its Director for Operations, who
testified on the issuance of company rules and regulations, such as the Guidelines of Guards Who Will Be Assigned To
Banks,[37] Weapons Training,[38] Safeguard Training Center Marksmanship Training Lesson Plan,[39]
Disciplinary/Corrective Sanctions,[40] it had also been established during Camero's cross-examination that Pajarillo was
not aware of such rules and regulations.[41] Notwithstanding Camero's clarification on his re-direct examination that
these company rules and regulations are lesson plans as a basis of guidelines of the instructors during classroom
instructions and not necessary to give students copy of the same,[42] the records do not show that Pajarillo had
attended such classroom instructions.

The records also failed to show that there was adequate training and continuous evaluation of the security guard's
performance. Pajarillo had only attended an in-service training on March 1, 1997 conducted by Toyota Sta. Rosa, his first
assignment as security guard of Safeguard, which was in collaboration with Safeguard. It was established that the
concept of such training was purely on security of equipments to be guarded and protection of the life of the employees.
[43]

It had not been established that after Pajarillo's training in Toyota, Safeguard had ever conducted further training of
Pajarillo when he was later assigned to guard a bank which has a different nature of business with that of Toyota. In fact,
Pajarillo testified that being on duty in a bank is different from being on duty in a factory since a bank is a very sensitive
area.[44]

Moreover, considering his reactions to Evangeline's act of just depositing her firearm for safekeeping, i.e., of
immediately shooting her, confirms that there was no training or seminar given on how to handle bank clients and on
human psychology.

Furthermore, while Safeguard would like to show that there were inspectors who go around the bank two times a day to
see the daily performance of the security guards assigned therein, there was no record ever presented of such daily
inspections. In fact, if there was really such inspection made, the alleged suspicious act of Evangeline could have been
taken noticed and reported.

Turning now to the award of damages, we find that the award of actual damages in the amount P157,430.00 which were
the expenses incurred by respondents in connection with the burial of Evangeline were supported by receipts. The
award of P50,000.00 as civil indemnity for the death of Evangeline is likewise in order.
As to the award of moral damages, Article 2206 of the Civil Code provides that the spouse, legitimate children and
illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of
the death of the deceased. Moral damages are awarded to enable the injured party to obtain means, diversions or
amusements that will serve to alleviate the moral suffering he/she has undergone, by reason of the defendant's culpable
action. Its award is aimed at restoration, as much as possible, of the spiritual status quo ante; thus it must be
proportionate to the suffering inflicted.[45] The intensity of the pain experienced by the relatives of the victim is
proportionate to the intensity of affection for him and bears no relation whatsoever with the wealth or means of the
offender.[46]

In this case, respondents testified as to their moral suffering caused by Evangeline's death was so sudden causing
respondent Lauro to lose a wife and a mother to six children who were all minors at the time of her death. In People v.
Teehankee, Jr.,[47] we awarded one million pesos as moral damages to the heirs of a seventeen-year-old girl who was
murdered. In Metro Manila Transit Corporation v. Court of Appeals,[48] we likewise awarded the amount of one million
pesos as moral damages to the parents of a third year high school student and who was also their youngest child who
died in a vehicular accident since the girl's death left a void in their lives. Hence, we hold that the respondents are also
entitled to the amount of one million pesos as Evangeline's death left a void in the lives of her husband and minor
children as they were deprived of her love and care by her untimely demise.

We likewise uphold the award of exemplary damages in the amount of P300,000.00. Under Article 2229 of the Civil
Code, exemplary damages are imposed by way of example or correction for the public good, in addition to moral,
temperate, liquidated or compensatory damages.[49] It is awarded as a deterrent to socially deleterious actions. In
quasi-delict, exemplary damages may be granted if the defendant acted with gross negligence.[50]

Pursuant to Article 2208 of the Civil Code, attorney's fees may be recovered when, as in the instant case, exemplary
damages are awarded. Hence, we affirm the award of attorney's fees in the amount of P30,000.00.

WHEREFORE, the petition for review is DENIED. The Decision dated July 16, 2004 of the Court of Appeals is AFFIRMED
with MODIFICATION that the civil liability of petitioner Safeguard Security Agency, Inc. is SOLIDARY and PRIMARY under
Article 2180 of the Civil Code.
Title

Heirs of Ochoa vs. G and S Transport Corp.

Case

G.R. No. 170071

Decision Date

Mar 9, 2011

The Supreme Court affirms the decision of the Court of Appeals, ruling that G & S Transport Corporation is liable for
breach of contract of carriage and must pay the heirs of Jose Marcial damages for loss of earning capacity and moral
damages.

breach of contract of carriage

loss of earning capacity

moral damages Show more tags (12)

660 Phil. 387

FIRST DIVISION

[ G.R. No. 170071, March 09, 2011 ]

HEIRS OF JOSE MARCIAL K. OCHOA NAMELY: RUBY B. OCHOA, MICAELA B. OCHOA AND JOMAR B. OCHOA, PETITIONERS,
VS.G & S TRANSPORT CORPORATION, RESPONDENT.

[G.R. No. 170125]

G & S TRANSPORT CORPORATION, PETITIONER, VS. HEIRS OF JOSE MARCIAL K. OCHOA NAMELY: RUBY B. OCHOA,
MICAELA B. OCHOA AND JOMAR B. OCHOA, RESPONDENTS.

DECISION

DEL CASTILLO, J.:

An accident which claimed the life of a passenger is the root of these two petitions - one brought before us by the
common carrier and the other by the heirs of the deceased.

These consolidated Petitions for Review on Certiorari assail the Court of Appeals' (CA) Decision[1] dated June 29, 2005 in
CA-G.R. CV No. 75602 which affirmed with modification the December 21, 2001 Decision and March 5, 2002 Order of the
trial court. Likewise assailed is the Resolution[2] dated October 12, 2005 denying the parties' respective Motions for
Reconsideration thereto.

Factual Antecedents

Jose Marcial K. Ochoa (Jose Marcial) died on the night of March 10, 1995 while on board an Avis taxicab owned and
operated by G & S Transport Corporation (G & S), a common carrier. As narrated by the trial court, the circumstances
attending Jose Marcial's death are as follows:
It appears that sometime in the evening of March 10, 1995, at the Manila Domestic Airport, the late Jose Marcial K.
Ochoa boarded and rode a taxicab with Plate No. PKR-534, a passenger vehicle for hire owned and operated by
defendant corporation under the business name "Avis Coupon Taxi" (Avis) and driven by its employee and authorized
driver Bibiano Padilla, Jr. on his way home to Teacher's Village, Diliman, Quezon City.

At about 11:00 p.m., the taxicab was cruising along Epifanio delos Santos Avenue [EDSA], in front of Camp Aguinaldo in
Quezon City at high speed. While going up the Boni Serrano (Santolan) fly-over, it overtook another cab driven by Pablo
Clave and tried to pass another vehicle, a ten-wheeler cargo truck. Because of the narrow space between the left side
railing of the fly-over and the ten-wheeler truck, the Avis cab was unable to pass and because of its speed, its driver
(Padilla) was unable to control it. To avoid colliding with the truck, Padilla turned the wheel to the left causing his taxicab
to ram the railing throwing itself off the fly-over and fell on the middle surface of EDSA below. The forceful drop of the
vehicle on the floor of the road broke and split it into two parts. Both driver Padilla and passenger Jose Marcial K. Ochoa
were injured and rushed to the hospital. At the East Avenue Medical Center, Ochoa was not as lucky as Padilla who was
alive. He was declared dead on arrival from the accident. The death certificate issued by the Office of the Civil Registrar
of Quezon City cited the cause of his death as vehicular accident.[3]

On May 13, 1999, Jose Marcial's wife, Ruby Bueno Ochoa, and his two minor children, Micaela B. Ochoa and Jomar B.
Ochoa (the heirs), through counsel, sent G & S a letter[4] demanding that the latter indemnify them for Jose Marcial's
death, his loss of earning capacity, and funeral expenses in the total amount of P15,000,000.00. As G & S failed to heed
the same, the heirs filed a Complaint[5] for Damages before the Regional Trial Court (RTC) of Pasig City which was raffled
to Branch 164 of said court.

The heirs alleged that G & S, as a common carrier, is under legal obligation to observe and exercise extraordinary
diligence in transporting its passengers to their destination safely and securely. However, G & S failed to observe and
exercise this extraordinary diligence because its employee failed to transport Jose Marcial to his destination safely. They
averred that G & S is liable to them for having breached the contract of common carriage. As an alternative cause of
action, they asserted that G & S is likewise liable for damages based on quasi-delict pursuant to Article 2180[6] in
relation to Article 2176[7] of the Civil Code. The heirs thus prayed for G & S to pay them actual damages, moral
damages, exemplary damages, and attorney's fees and expenses of litigation.

In its Answer With Compulsory Counterclaims,[8] G & S claimed that Jose Marcial boarded an Avis taxicab driven by its
employee, Bibiano Padilla (Padilla), at the Domestic Airport to bring him to Teacher's Village in Quezon City. While
passing the Santolan fly-over, however, the Avis taxicab was bumped by an on-rushing delivery van at the right portion
causing the taxicab to veer to the left, ram through the left side of the railings of the fly-over and fall to the center of the
island below. The taxicab was split into two and Jose Marcial was thrown 10 meters away. G & S posited that the
proximate cause of Jose Marcial's death is a

fortuitous event and/or the fault or negligence of the driver of the delivery van that hit the taxicab. It likewise claimed
that it exercised the diligence required of a good father of a family in the selection and supervision of its employees
including Padilla. By way of compulsory counterclaim, G & S sought to recover from the heirs the amount of P300,000.00
as attorney's fees and costs of suit.

Ruling of the Regional Trial Court

On December 27, 2001, the trial court rendered a Decision[9] finding the vehicular mishap not caused by a fortuitous
event but by the negligence of Padilla. It likewise found the evidence adduced by G & S to show that it exercised the
diligence of a good father of a family in the selection and supervision of its employees as insufficient. Hence, the trial
court declared G & S civilly liable to the heirs. However, for lack of receipts or any proof of funeral expenses and other
actual damages, the trial court denied the heirs' claim for actual damages. It also denied them moral and exemplary
damages for lack of legal basis. The dispositive portion of said Decision reads:
WHEREFORE, defendant is hereby adjudged guilty of breach of contract of carriage and is ordered to pay plaintiffs the
following amounts:

P50,000.00 as civil indemnity for the death of deceased Jose Marcial K. Ochoa;

P6,537,244.96 for the loss of earning capacity of the deceased;

P100,00.00 for attorney's fees;

And the cost of litigation.

SO ORDERED.[10]

G & S filed a Notice of Appeal[11] while the heirs filed a Motion for Partial Reconsideration.[12] The heirs averred that
they are entitled to moral damages pursuant to Article 1764[13] in relation to Article 2206(3)[14] of the Civil Code. They
also cited applicable jurisprudence providing that moral damages are recoverable in a damage suit predicated upon a
breach of contract of carriage where the mishap results in the death of the passenger. With respect to their claim for
exemplary damages, the heirs relied upon Article 2232 of the Civil Code which provides that in contracts and quasi-
contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive
or malevolent manner. And, since Padilla was declared by the trial court to have been grossly negligent in driving the
taxicab, the heirs claimed that they are likewise entitled to exemplary damages.

After G & S filed its Opposition (To Plaintiffs' Motion for Partial Reconsideration),[15] the trial court issued an Order[16]
on March 5, 2002. It found merit in the heirs' Motion for Partial Reconsideration and thus declared them entitled to
moral and exemplary damages, viz:

WHEREFORE, the decision dated December 27, 2001 is hereby modified so as to order defendant Corporation to pay
plaintiffs the amount of P300,000.00 as moral damages and P50,000.00 as exemplary damages. The dispositive portion
of said decision is hereby amended to read as follows:

`WHEREFORE, defendant is hereby adjudged guilty of breach of contract of carriage and is ordered to pay plaintiffs the
following amounts:

P50,000.00 as civil indemnity for the death of the deceased Jose Marcial K. Ochoa;

P6,537,244.96 for the loss of earning capacity of the deceased.

P300,000.00 as moral damages;

P50,000.00 as exemplary damages;

P100,000.00 for attorney's fees;

And the costs of litigation.'

SO ORDERED.[17]

Because of this, G & S filed another Notice of Appeal[18] and same was given due course by the trial court in an
Order[19] dated April 23, 2002.

Ruling of the Court of Appeals

Before the CA, G & S continued to insist that it exercised the diligence of a good father of the family in the selection and
supervision of its employees. It averred that it has been carrying out not only seminars for its drivers even before they
were made to work, but also periodic evaluations for their performance. Aside from these, it has also been conducting
monthly check-up of its automobiles and has regularly issued rules regarding the conduct of its drivers. G & S claimed
that it was able to establish a good name in the industry and maintain a clientele.

In an effort to build up Padilla's character as an experienced and careful driver, G & S averred that: (1) before G & S
employed Padilla, he was a delivery truck driver of Inter Island Gas Service for 11 years; (2) Padilla has been an employee
of G & S from 1989 to 1996 and during said period, there was no recorded incident of his being a negligent driver; (3)
despite his qualifications, G & S still required Padilla to submit an NBI clearance, driver's license and police clearance; (4)
Padilla's being a good driver-employee was manifest in his years of service with G & S, as in fact, he has received
congratulatory messages from the latter as shown by the inter-office memos dated August 23, 1990 and February 1,
1993; and that (5) Padilla attended a seminar at the Pope Pius Center sometime in December 1999 as part of the NAIA
Taxi Operation Program.

G & S also argued that the proximate cause of Jose Marcial's death is a fortuitous event and/or the fault or negligence of
another and not of its employee. According to G & S, the collision was totally unforeseen since Padilla had every right to
expect that the delivery van would just overtake him and not hit the right side of the taxicab. Therefore, what transpired
was beyond Padilla's control. There was no negligence on his part but on the part of the driver of the delivery van. For
this reason, G & S opined that it was not liable to the heirs.

On the other hand, the heirs maintained that Padilla was grossly negligent in driving the Avis taxicab on the night of
March 10, 1995. They claimed that Padilla, while running at a very high speed, acted negligently when he tried to
overtake a ten-wheeler truck at the foot of the fly-over. This forced him to swerve to the left and as a consequence, the
Avis taxicab hit the center of the railing and was split into two upon hitting the ground. The manner by which Padilla
drove the taxicab clearly showed that he acted without regard to the safety of his passenger.

The heirs also averred that in order for a fortuitous event to exempt one from liability, it is necessary that he has
committed no negligence or conduct that may have occasioned the loss. Thus, to be exempt from liability for the death
of Jose Marcial on this ground, G & S must clearly show that the proximate cause of the casualty was entirely
independent of human will and that it was impossible to avoid. And since in the case at bar it was Padilla's inexcusable
poor judgment, utter lack of foresight and extreme negligence which were the immediate and proximate causes of the
accident, same cannot be considered to be due to a fortuitous event. This is bolstered by the fact that the court trying
the case for criminal negligence arising from the same incident convicted Padilla for said charge.[20]

At any rate, the heirs contended that regardless of whether G & S observed due diligence in the selection of its
employees, it should nonetheless be held liable for the death of Jose Marcial pursuant to Article 1759 of the Civil Code
which provides:

ART. 1759 - Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of
the former's employees, although such employees may have acted beyond the scope of their authority or in violation of
the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a
family in the selection and supervision of their employees.

In sum, the heirs prayed that the appeal be dismissed for lack of merit and the assailed Decision and Order of the trial
court be affirmed in toto.

In a Decision[21] dated June 29, 2005, the CA ruled in favor of the heirs. The appellate court gave weight to their
argument that in order for a fortuitous event to exempt one from liability, it is necessary that he committed no
negligence or misconduct that may have occasioned the loss. In this case, the CA noted that Padilla failed to employ
reasonable foresight, diligence and care needed to exempt G & S from liability for Jose Marcial's death. Said court also
quoted pertinent portions of the MTC decision convicting Padilla of reckless imprudence resulting in homicide to negate
G & S' claim that the proximate cause of the accident was the fault of the driver of the delivery van who allegedly hit the
right side of the taxicab. And just like the trial court, the CA found insufficient the evidence adduced by G & S to support
its claim that it exercised due diligence in the selection and supervision of its employees.

With respect to the award of P6,537,244.96 for Jose Marcial's loss of earning capacity, the CA declared the same
unwarranted. It found the Certification[22] issued by Jose Marcial's employer, the United States Agency for International
Development (USAID) through its Chief of Human Resources Division Jonas Cruz (Cruz), as self-serving, unreliable, and
biased. While said certification states that Jose Marcial was earning an annual salary of P450,844.49 at the time of his
untimely demise, the CA noted that same is unsupported by competent evidence such as income tax returns or receipts.
This is in view of the ruling in People v. EreAo[23] where it was held that "there must be unbiased proof of the
deceased's average income." Anent moral damages, the CA found the award of P300,000.00 excessive and thus reduced
the same to P200,000.00 as to make it proportionate to the award of exemplary damages which is P50,000.00. The
dispositive portion of said Decision reads:

WHEREFORE, the assailed Decision dated December 27, 2001 and Order dated March 5, 2002 are AFFIRMED with the
following MODIFICATION: appellant is ordered to pay appellees the sum of P50,000.00 as civil indemnity for the death of
the deceased Jose Marcial K. Ochoa, P200,000.00 as moral damages, P50,000.00 as exemplary damages, P100,000.00 for
attorney's fees and the costs of litigation. The trial court's award of P6,537,244.96 for the loss of earning capacity of the
deceased is DELETED for lack of basis.

SO ORDERED.

Both parties moved for reconsideration[24] but the CA denied their respective motions for reconsideration in a
Resolution[25] dated October 12, 2005.

Hence, G & S and the heirs filed their respective Petitions for Review on Certiorari before this Court. The heirs' petition
was docketed as G.R. No. 170071 and that of G & S as G.R. No. 170125. These petitions were later consolidated pursuant
to this Court's Resolution of November 21, 2005.[26]

G.R. No. 170125

G & S anchors its petition on the following grounds:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT RULING THAT THE PROXIMATE CAUSE OF DEATH OF MR.
JOSE MARCIAL K. OCHOA WAS A FORTUITOUS EVENT AND/OR WAS DUE TO THE FAULT OR NEGLIGENCE OF ANOTHER
AND SHOULD THUS EXEMPT THE PETITIONER FROM LIABILITY.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT TAKING NOTE OF THE FACT THAT THE PETITIONER'S
EMPLOYEE HAD BEEN ACQUITTED OF THE CRIME OF RECKLESS IMPRUDENCE RESULTING (IN) HOMICIDE.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING THE TESTIMONY OF A WITNESS WHO SURFACED
MONTHS AFTER THE INCIDENT WHILE DISREGARDING THAT OF AN EYEWITNESS WHO WAS PRESENT AT THE TIME AND
PLACE OF THE ACCIDENT.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT RULING THAT THE PETITIONER EXERCISED THE DILIGENCE
OF A GOOD FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES PARTICULARLY MR. BIBIANO
PADILLA.[27]
G & S reiterates its arguments that the proximate cause of the accident is a fortuitous event and/or the negligence of
the driver of the delivery van which bumped the right portion of its taxicab and, that it exercised the diligence of a good
father of a family in the selection and supervision of its employees. It faults the CA when it overlooked the fact that the
MTC Decision convicting Padilla of reckless imprudence has already been reversed on appeal by the RTC with Padilla
having been accordingly acquitted of the crime charged. Moreover, it claims that the appellate court erred in according
respect to the testimony of the lone prosecution witness, Pablo Clave (Clave), when it concluded that Padilla was driving
negligently at the time of the accident. It asserts that Clave is not a credible witness and so is his testimony. Thus, G & S
prays that the assailed CA Decision and Resolution be reversed and set aside.

On the other hand, the heirs posit that the determination of the issues raised by G & S necessarily entails a re-
examination of the factual findings which this Court cannot do in this petition for review on certiorari. At any rate, they
maintain that the trial court itself is convinced of Clave's credibility. They stress the settled rule that the evaluation of
the credibility of witnesses is a matter that particularly falls within the authority of the trial court because it had the
opportunity to observe the demeanor of the witnesses on the stand.

The heirs assert that fortuitous event was not the proximate cause of the mishap. They point out that as correctly found
by the trial court, Padilla was running at an extremely high speed. This was why the impact was so strong when the
taxicab rammed the fly-over railings and was split into two when it hit the ground. Also, while it is true that the MTC
Decision in the criminal case for reckless imprudence has been reversed by the RTC, this does not excuse G & S from its
liability to the heirs because its liability arises from its breach of contract of carriage and from its negligence in the
selection and supervision of its employees. Also, since the acquittal of Padilla is based on reasonable doubt, same does
not in any way rule out his negligence as this may merely mean that the prosecution failed to meet the requisite
quantum of evidence to sustain his conviction. Therefore, G & S cannot bank on said acquittal to disprove its liability.

G.R. No. 170071

The heirs, on the other hand, advance the following grounds in support of their petition:

THE COURT OF APPEALS MANIFESTLY AND GRAVELY ERRED IN COMPLETELY DELETING THE TRIAL COURT'S AWARD FOR
THE LOSS OF EARNING CAPACITY OF THE DECEASED.

THE COURT OF APPEALS MANIFESTLY AND GRAVELY ERRED IN REDUCING THE TRIAL COURT'S AWARD FOR MORAL
DAMAGES.[28]

The focal point of the heirs' petition is the CA's deletion of the award of P6,537,244.96 for Jose Marcial's loss of earning
capacity as well as the reduction of the award of moral damages from P300,000.00 to P200,000.00.

The heirs aver that the appellate court gravely erred in relying upon EreAo as said case is not on all fours with the
present case. They contend that in EreAo, this Court disallowed the award for loss of income because the only proof
presented was a handwritten statement of the victim's spouse stating the daily income of the deceased as a self-
employed fish vendor. The heirs argue that the reason why this Court declared said handwritten statement as self-
serving is because the one who prepared it, the deceased's wife, was also the one who would directly and personally
benefit from such an award.[29] This cannot be said in the case at bar since the same bias and personal interest cannot
be attributed to Jose Marcial's employer, the USAID. Unlike in EreAo, USAID here does not stand to be benefited by an
award for Jose Marcial's loss of earning capacity. Clearly, the Certification issued by it is far from being self-serving. At
any rate, the heirs contend that EreAo has already been superseded by Pleyto v. Lomboy[30] where this Court held that
in awarding damages for loss of earning capacity, "mere testimonial evidence suffices to establish a basis for which the
court can make a fair and reasonable estimate of the loss of earning capacity". In addition, the heirs point out that the
authenticity and accuracy of said Certification was neither questioned by G & S nor discredited by any controverting
evidence. In fact, its admission by the trial court was not even assigned by G & S as an error in their appeal before the
CA.
As to the reduction of moral damages, the heirs claim that since the CA agreed with the factual circumstances of the
case as found by the trial court, there is therefore no reason for it to alter the award of damages arising from such
factual circumstances. They aver that the CA may only modify the damages awarded by the trial court when it is
excessive and scandalous as held in Meneses v. Court of Appeals.[31] Here, they claim that the award of moral damages
in the amount of P300,000.00 cannot be considered as excessive and unreasonable but only commensurate to the
sufferings caused by the incident to a wife who became a young widow at the age of 33 and to two minor children who
lost a father. Moreover, the heirs aver that the CA should not have reduced the award of moral damages just to make
said amount proportionate to the exemplary damages awarded. This is because there is no such rule which dictates that
the amount of moral damages should be proportionate to that of the exemplary damages. The heirs pray that the
assailed CA Decision and Resolution be reversed and set aside insofar as they deleted the award for loss of earning
capacity and reduced the award for moral damages.

For its part, G & S avers that the Certification issued by USAID is self-serving because the USAID officer who issued it has
not been put on the witness stand to validate the contents thereof. Moreover, said Certification was not supported by
competent evidence such as income tax returns and receipts. G & S likewise finds the reduction of the award of moral
damages appropriate in view of the settled rule that moral damages are not meant to enrich the complainant at the
expense of the defendant. Hence, it prays that the petition be dismissed for lack of merit.

Our Ruling

We shall first tackle the issues raised by G & S in its petition.

The first, third and fourth issues raised by G & S involve questions of fact

We have reviewed said issues and we find that the determination of the first, third and fourth issues raised entails re-
examination of the evidence presented because they all involve questions of fact. In Microsoft Corporation v. Maxicorp,
Inc.,[32] we held that:

Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. If the query
requires a re-evaluation of the credibility of witnesses, or the existence or relevance of surrounding circumstances and
their relation to each other, the issue in that query is factual. Our ruling in Paterno v. Paterno is illustrative on this point:

Such questions as whether certain items of evidence should be accorded probative value or weight, or rejected as feeble
or spurious, or whether or not the proof on one side or the other are clear and convincing and adequate to establish a
proposition in issue, are without doubt questions of fact. Whether or not the body of proofs presented by a party,
weighed and analyzed in relation to contrary evidence submitted by adverse party, may be said to be strong, clear and
convincing; whether or not certain documents presented by one side should be accorded full faith and credit in the face
of protests as to their spurious character by the other side; whether or not inconsistencies in the body of proofs of a
party are of such a gravity as to justify refusing to give said proofs weight - all these are issues of fact. (Citations omitted)

In this case, the said three issues boil down to the determination of the following questions: What is the proximate
cause of the death of Jose Marcial? Is the testimony of prosecution witness Clave credible? Did G & S exercise the
diligence of a good father of a family in the selection and supervision of its employees? Suffice it to say that these are all
questions of fact which require this Court to inquire into the probative value of the evidence presented before the trial
court. As we have consistently held, "[t]his Court is not a trier of facts. It is not a function of this court to analyze or
weigh evidence. When we give due course to such situations, it is solely by way of exception. Such exceptions apply only
in the presence of extremely meritorious circumstances."[33] Here, we note that although G & S enumerated in its
Consolidated Memorandum[34] the exceptions[35] to the rule that a petition for review on certiorari should only raise
questions of law, it nevertheless did not point out under what exception its case falls. And, upon review of the records of
the case, we are convinced that it does not fall under any. Hence, we cannot proceed to resolve said issues and disturb
the findings and conclusions of the CA with respect thereto. As we declared in Diokno v. Cacdac:[36]

It is aphoristic that a re-examination of factual findings cannot be done through a petition for review on certiorari under
Rule 45 of the Rules of Court because as earlier stated, this Court is not a trier of facts; it reviews only questions of law.
The Supreme Court is not duty-bound to analyze and weigh again the evidence considered in the proceedings below.
This is already outside the province of the instant Petition for Certiorari. [Citations omitted.]

There is a contract of carriage between

G & S and Jose Marcial

What is clear from the records is that there existed a contract of carriage between G & S, as the owner and operator of
the Avis taxicab, and Jose Marcial, as the passenger of said vehicle. As a common carrier, G & S "is bound to carry [Jose
Marcial] safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with
due regard for all the circumstances."[37] However, Jose Marcial was not able to reach his destination safely as he died
during the course of the travel. "In a contract of carriage, it is presumed that the common carrier is at fault or is
negligent when a passenger dies or is injured. In fact, there is even no need for the court to make an express finding of
fault or negligence on the part of the common carrier. This statutory presumption may only be overcome by evidence
that the carrier exercised extraordinary diligence."[38] Unfortunately, G & S miserably failed to overcome this
presumption. Both the trial court and the CA found that the accident which led to Jose Marcial's death was due to the
reckless driving and gross negligence of G & S' driver, Padilla, thereby holding G & S liable to the heirs of Jose Marcial for
breach of contract of carriage.

The acquittal of Padilla in the criminal

case is immaterial to the instant case

for breach of contract

This thus now leaves us with the remaining issue raised by G & S, that is, whether the CA gravely erred in not taking note
of the fact that Padilla has already been acquitted of the crime of reckless imprudence resulting in homicide, a charge
which arose from the same incident subject of this case.

Article 31 of the Civil Code provides, viz:

When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil
action may proceed independently of the criminal proceedings and regardless of the result of the latter.

Thus, in Cancio, Jr. v. Isip,[39] we declared:

In the instant case, it must be stressed that the action filed by petitioner is an independent civil action, which remains
separate and distinct from any criminal prosecution based on the same act. Not being deemed instituted in the criminal
action based on culpa criminal, a ruling on the culpability of the offender will have no bearing on said independent civil
action based on an entirely different cause of action, i.e., culpa contractual." (Emphasis supplied; Citations omitted.)

In this case, the action filed by the heirs is primarily for the recovery of damages arising from breach of contract of
carriage allegedly committed by G & S. Clearly, it is an independent civil action arising from contract which is separate
and distinct from the criminal action for reckless imprudence resulting in homicide filed by the heirs against Padilla by
reason of the same incident. Hence, regardless of Padilla's acquittal or conviction in said criminal case, same has no
bearing in the resolution of the present case. There was therefore no error on the part of the CA when it resolved this
case without regard to the fact that Padilla has already been acquitted by the RTC in the criminal case. Moreover, while
the CA quoted some portions of the MTC Decision in said criminal case, we however find that those quoted portions
were only meant to belie G & S' claim that the proximate cause of the accident was the negligence of the driver of the
delivery van which allegedly hit the Avis taxicab. Even without those quoted portions, the appellate court's ultimate
finding that it was Padilla's negligence which was the proximate cause of the mishap would still be the same. This is
because the CA has, in fact, already made this declaration in the earlier part of its assailed Decision. The fact that the
MTC Decision from which the subject quoted portions were lifted has already been reversed by the RTC is therefore
immaterial.

In view of the foregoing, we deny G & S' petition for lack of merit.

The denial by the CA of the heirs' claim

for lost earnings is unwarranted

Going now to the petition filed by the heirs, we note at the outset that the issues of whether the CA erred in deleting the
award for loss of earning capacity and in reducing the award for moral damages made by the trial court likewise raise
questions of fact as they "involve an examination of the probative value of the evidence presented by the parties".[40]
However, we find that the heirs' case falls under one of the exceptions because the findings of the CA conflict with the
findings of the RTC.[41] Since the heirs properly raised the conflicting findings of the lower courts, it is proper for this
Court to resolve such contradiction.[42]

In EreAo, we denied the claim for loss of income because the handwritten estimate of the deceased's daily income as a
self-employed vendor was not supported by competent evidence like income tax returns or receipts. This was in view of
the rule that compensation for lost income is in the nature of damages and as such requires due proof of damages
suffered. We reiterated this rule in People v. Yrat[43] where we likewise denied the same claim because the only
evidence presented to show that the deceased was earning P50,000.00 a month was the testimony of the wife. There
we stated that for lost income due to death, there must be unbiased proof of the deceased's average income. Self-
serving, hence, unreliable statement is not enough. In People v. Caraig,[44] we declared that "documentary evidence
should be presented to substantiate the claim for damages for loss of earning capacity. By way of exception, damages
therefor may be awarded despite the absence of documentary evidence, provided that there is testimony that the
victim was either (1) self-employed earning less than the minimum wage under current labor laws, and judicial notice
may be taken of the fact that in the victim's line of work no documentary evidence is available; or (2) employed as a
daily-wage worker earning less than the minimum wage under current labor laws". However, we subsequently ruled in
Pleyto v. Lomboy[45] that "failure to present documentary evidence to support a claim for loss of earning capacity of the
deceased need not be fatal to its cause. Testimonial evidence suffices to establish a basis for which the court can make a
fair and reasonable estimate of the loss of earning capacity". Hence, we held as sufficient to establish a basis for an
estimate of damages for loss of earning capacity the testimony of the victim's widow that her husband was earning a
monthly income of P8,000.00. Later, in Victory Liner, Inc. v. Gammad,[46] after finding that the deceased's earnings does
not fall within the exceptions laid down in Caraig, we deleted the award for compensatory damages for loss of earning
capacity as same was awarded by the lower courts only on the basis of the husband's testimony that the deceased was
39 years of age and a Section Chief of the Bureau of Internal Revenue with a salary of P83,088.00 per annum at the time
of her death. This same rule was also applied in the 2008 case of Licyayo v. People.[47]

In all of the cases mentioned except for EreAo, the sole basis for the claim for loss of earning capacity were the
testimonies of the claimants. This is not the case here. Just like in EreAo where the testimony of the mother of the
deceased was accompanied by a handwritten estimate of her daughter's alleged income as a fish vendor, the testimony
of Jose Marcial's wife that he was earning around P450,000.00 a year was corroborated by a Certification issued by the
USAID. However in EreAo, we declared as self-serving the handwritten estimate submitted by the mother hence we
denied the claim for such award. Based on said ruling, the CA in this case deleted the award for lost income after it
found the USAID Certification to be self-serving and unreliable.

We disagree. The CA sweepingly concluded that the USAID Certification is self-serving and unreliable without
elaborating on how it was able to arrive at such a conclusion. A research on USAID reveals that it is the "principal [United
States] agency to extend assistance to countries recovering from disaster, trying to escape poverty, and engaging in
democratic reforms."[48] It is an "independent federal government agency that receives over-all foreign policy guidance
from the Secretary of the State [of the United States]."[49] Given this background, it is highly improbable that such an
agency will issue a certification containing unreliable information regarding an employee's income. Besides, there exists
a presumption that official duty has been regularly performed.[50] Absent any showing to the contrary, it is presumed
that Cruz, as Chief of Human Resources Division of USAID, has regularly performed his duty relative to the issuance of
said certification and therefore, the correctness of its contents can be relied upon. This presumption remains especially
so where the authenticity, due execution and correctness of said certification have not been put in issue either before
the trial court or the CA. As to its being self-serving, our discussion on "self-serving evidence" in Heirs of Pedro ClemeAa
y Zurbano v. Heirs of Irene B. Bien[51] is enlightening, viz:

`Self-serving evidence,' perhaps owing to its descriptive formulation, is a concept much misunderstood. Not
infrequently, the term is employed as a weapon to devalue and discredit a party's testimony favorable to his cause. That,
it seems, is the sense in which petitioners are using it now. This is a grave error. "Self-serving evidence" is not to be
taken literally to mean any evidence that serves its proponent's interest. The term, if used with any legal sense, refers
only to acts or declarations made by a party in his own interest at some place and time out of court x x x. (Citations
omitted; emphasis supplied.)

Verily, the USAID certification cannot be said to be self-serving because it does not refer to an act or declaration made
out of court by the heirs themselves as parties to this case.

Clearly, the CA erred in deleting the award for lost income on the ground that the USAID Certification supporting such
claim is self-serving and unreliable. On the contrary, we find said certification sufficient basis for the court to make a fair
and reasonable estimate of Jose Marcial's loss of earning capacity just like in Tamayo v. SeAora[52] where we based the
victim's gross annual income on his pay slip from the Philippine National Police. Hence, we uphold the trial court's award
for Jose Marcial's loss of earning capacity.

While the trial court applied the formula generally used by the courts to determine net earning capacity which is, to wit:

Net Earning Capacity = life expectancy* x (gross annual income - reasonable

living expenses),[53]

*Life expectancy = 2/3 (80 - age of the deceased)

we, however, find incorrect the amount of P6,537, 244.96 arrived at. The award should be P6,611,634.59 as borne out
by the following computation:

Net earning capacity = 2 (80-36[54]) x 450, 844.49[55]-50%[56]

= 88 x 225,422.25

= 29.33 x 225,422.25

= P6, 611,634.59

The award of moral damages should be

modified
While we deemed it proper to modify the amount of moral damages awarded by the trial court as discussed below, we
nevertheless agree with the heirs that the CA should not have pegged said award in proportion to the award of
exemplary damages. Moral and exemplary damages are based on different jural foundations.[57] They are different in
nature and require separate determination.[58] The amount of one cannot be made to depend on the other.

In Victory Liner Inc. v. Gammad[59] we awarded P100,000.00 by way of moral damages to the husband and three
children of the deceased, a 39-year old Section Chief of the Bureau of Internal Revenue, to compensate said heirs for the
grief caused by her death. This is pursuant to the provisions of Articles 1764 and 2206(3) which provide:

Art. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book,
concerning Damages. Articles 2206 shall also apply to the death of a passenger caused by the breach of contract by a
common carrier.

Art. 2206. x x x

(3) The spouse, legitimate and illegitimate descendants and the ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased.

Here, there is no question that the heirs are likewise entitled to moral damages pursuant to the above provisions,
considering the mental anguish suffered by them by reason of Jose Marcial's untimely death, as can be deduced from
the following testimony of his wife Ruby:

Atty. Suarez:

Q:

How would you describe Jose Marcial Ochoa?

(Ruby) A:

My husband was a very loving husband, faithful husband, a very [good] provider[.] I depended on him so much
financially [and] emotionally[.] He was practically my life then.

Q:

How is he as a father?

A:

A very good father, he is very committed to Micaela[. H]e has always time for her[. H]e is a family man, so it's really a
great [loss] to me and to Micaela.

Q:

What was your reaction upon learning of your husband's death?

A:

Immediately after I learned of his death, I tried very hard to keep a clear mind for my little girl, she was 3 A12 and she
could not grasp what death is, so I found [it] so hard to explain to her [at] that time what happened [e]specially
[because] she just talked to her father from the airport telling her that he is coming home, tapos hindi na pala.

Q:

How did it affect you?

A:

It was a painful struggle everyday just to get up and move on when someone who [you] really really love and [who] is
important to you ... it is very hard to move on and [it is even] harder to move on [when] I found out that I was pregnant
with my second child, parang tinabunan ka [ng] lahat eh[. I]t's [too] hard to find happiness, you're pregnant, when you
know wala naman talagang father yung bata later on x x x

Under this circumstance, we thus find as sufficient and "somehow proportional to and in approximation of the suffering
inflicted"[61] an award of moral damages in an amount similar to that awarded in Victory which is P100,000.00.

From the above discussion, we, thus, partly grant the heirs' petition.

WHEREFORE, the petition for review on certiorari in G.R. No. 170071 is PARTLY GRANTED while the petition in G.R. No.
170125 is DENIED. The assailed Decision and Resolution dated June 29, 2005 and October 12, 2005 of the Court of
Appeals in CA-G.R. CV No. 75602 are AFFIRMED with the MODIFICATIONS that G & S is ordered to pay the heirs of Jose
Marcial K. Ochoa the sum of P6,611,634.59 for loss of earning capacity of the deceased and P100,000.00 as moral
damages.

SO ORDERED.

Corona, C.J., (Chairperson), Velasco, Jr., Leonardo-De Castro, and Perez, JJ., concur.
Title

Mercury Drug Corp. vs. Spouses Huang

Case

G.R. No. 172122

Decision Date

Jun 22, 2007

Mercury Drug Corporation and its truck driver are held liable for a road accident that caused severe injuries and
extensive damage to a car, as they failed to exercise due diligence in the selection and supervision of their employee.
The court affirms the award of damages to the respondents to compensate for their physical and emotional suffering
and to deter future negligence.

road accident

severe injuries

extensive damage Show more tags (13)

552 Phil. 496

FIRST DIVISION

[ G.R. NO. 172122, June 22, 2007 ]

MERCURY DRUG CORPORATION AND ROLANDO J. DEL ROSARIO, PETITIONERS, VS. SPOUSES RICHARD HUANG AND
CARMEN HUANG, AND STEPHEN HUANG, RESPONDENTS.

DECISION

PUNO, C.J.:

On appeal are the Decision[1] and Resolution[2] of the Court of Appeals in CA-G.R. CV No. 83981, dated February 16,
2006 and March 30, 2006, respectively which affirmed with modification the Decision[3] of the Regional Trial Court (RTC)
of Makati City, dated September 29, 2004. The trial court found petitioners jointly and severally liable to pay
respondents damages for the injuries sustained by respondent Stephen Huang, son of respondent spouses Richard and
Carmen Huang.

First, the facts:

Petitioner Mercury Drug Corporation (Mercury Drug) is the registered owner of a six-wheeler 1990 Mitsubishi Truck with
plate number PRE 641 (truck). It has in its employ petitioner Rolando J. del Rosario as driver. Respondent spouses
Richard and Carmen Huang are the parents of respondent Stephen Huang and own the red 1991 Toyota Corolla GLI
Sedan with plate number PTT 775 (car).

These two vehicles figured in a road accident on December 20, 1996 at around 10:30 p.m. within the municipality of
Taguig, Metro Manila. Respondent Stephen Huang was driving the car, weighing 1,450 kg., while petitioner Del Rosario
was driving the truck, weighing 14,058 kg. Both were traversing the C-5 Highway, north bound, coming from the general
direction of Alabang going to Pasig City. The car was on the left innermost lane while the truck was on the next lane to
its right, when the truck suddenly swerved to its left and slammed into the front right side of the car. The collision hurled
the car over the island where it hit a lamppost, spun around and landed on the opposite lane. The truck also hit a
lamppost, ran over the car and zigzagged towards, and finally stopped in front of Buellah Land Church.
At the time of the accident, petitioner Del Rosario only had a Traffic Violation Receipt (TVR). His driver's license had been
confiscated because he had been previously apprehended for reckless driving.

The car, valued at P300,000.00, was a total wreck. Respondent Stephen Huang sustained massive injuries to his spinal
cord, head, face, and lung. Despite a series of operations, respondent Stephen Huang is paralyzed for life from his chest
down and requires continuous medical and rehabilitation treatment.

Respondents fault petitioner Del Rosario for committing gross negligence and reckless imprudence while driving, and
petitioner Mercury Drug for failing to exercise the diligence of a good father of a family in the selection and supervision
of its driver.

In contrast, petitioners allege that the immediate and proximate cause of the accident was respondent Stephen Huang's
recklessness. According to petitioner Del Rosario, he was driving on the left innermost lane when the car bumped the
truck's front right tire. The truck then swerved to the left, smashed into an electric post, crossed the center island, and
stopped on the other side of the highway. The car likewise crossed over the center island and landed on the same
portion of C-5. Further, petitioner Mercury Drug claims that it exercised due diligence of a good father of a family in the
selection and supervision of all its employees.

The trial court, in its Decision dated September 29, 2004, found petitioners Mercury Drug and Del Rosario jointly and
severally liable to pay respondents actual, compensatory, moral and exemplary damages, attorney's fees, and litigation
expenses. The dispositive portion reads:

WHEREFORE, judgment is rendered finding defendants Mercury Drug Corporation, Inc. and Rolando del Rosario, jointly
and severally liable to pay plaintiffs Spouses Richard Y. Huang and Carmen G. Huang, and Stephen Huang the following
amounts:

Two Million Nine Hundred Seventy Three Thousand Pesos (P2,973,000.00) actual damages;

As compensatory damages:

Twenty Three Million Four Hundred Sixty One Thousand, and Sixty-Two Pesos (P23,461,062.00) for life care cost of
Stephen;

Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity of Stephen;

Four Million Pesos (P4,000,000.00) as moral damages;

Two Million Pesos (P2,000,000.00) as exemplary damages; and

One Million Pesos (P1,000,000.00) as attorneys fees and litigation expense.[4]

On February 16, 2006, the Court of Appeals affirmed the decision of the trial court but reduced the award of moral
damages to P1,000,000.00. The appellate court also denied the motion for reconsideration filed by petitioners.

Hence, this appeal.

Petitioners cite the following grounds for their appeal:

That the subject Decision which dismissed the appeal of petitioners herein but AFFIRMED WITH MODIFICATION the
decision of the Regional Trial Court, Branch 64, Makati City, in that the award of moral damages was reduced to
P1,000,000.00 and its Resolution dated March 30, 2006, which dismissed outright the Motion for Reconsideration must
be set aside because the Honorable Court of Appeals committed reversible error:

IN DENYING OUTRIGHTLY THE MOTION FOR RECONSIDERATION ON ALLEGEDLY BEING FILED OUT OF TIME FOR ONE
DAY;

IN ACCORDING GREATER WEIGHT TO THE EVIDENCE ADDUCED BY THE RESPONDENTS HEREIN AND COMPLETELY
DISREGARDING THE DEFENSE INTERPOSED BY THE PETITIONERS HEREIN;

IN DISREGARDING COMPLETELY ALL EVIDENCES PRESENTED BY THE PETITIONERS HEREIN AND PROCEEDED TO RENDER
ITS DECISION BASED ON PRESUMPTIONS AND PERSONAL OPINIONS OF PEOPLE WHO ARE NOT WITNESSES TO THE
ACCIDENT;

IN AWARDING DAMAGES IN FAVOR OF RESPONDENTS HEREIN;

IN FINDING THAT MERCURY DRUG CORPORATION FAILED TO EXERCISE THE DILIGENCE REQUIRED IN SUPERVISING ITS
EMPLOYEES DESPITE OVERWHELMING EVIDENCE PRESENTED BY PETITIONER COMPANY;

IN FINDING THAT PETITIONER ROLANDO DEL ROSARIO WAS NEGLIGENT IN DRIVING THE TRUCK AT THE TIME OF
ACCIDENT AND TOTALLY DISREGARDING THE EVIDENCES PRESENTED DURING THE TRIAL OF THE CASE.

IN PRESENTING ONLY IN THE DECISION TESTIMONIES FAVORABLE TO THE RESPONDENTS HEREIN AND COMPLETELY
DISREGARDING THE EVIDENCES PRESENTED BY THE PETITIONERS HEREIN WHICH CONTRADICTED SUCH TESTIMONIES
NOT ONLY THROUGH ORAL TESTIMONIES BUT AS WELL AS DOCUMENTARY EVIDENCES.[5]

We affirm the findings of the trial court and the appellate court that petitioner Del Rosario was negligent. The evidence
does not support petitioners' claim that at the time of the accident, the truck was at the left inner lane and that it was
respondent Stephen Huang's car, at its right, which bumped the right front side of the truck. Firstly, petitioner Del
Rosario could not precisely tell which part of the truck was hit by the car,[6] despite the fact that the truck was snub-
nosed and a lot higher than the car. Petitioner Del Rosario could not also explain why the car landed on the opposite
lane of C-5 which was on its left side. He said that "the car did not pass in front of him after it hit him or under him or
over him or behind him."[7] If the truck were really at the left lane and the car were at its right, and the car hit the truck
at its front right side, the car would not have landed on the opposite side, but would have been thrown to the right side
of the C-5 Highway. Noteworthy on this issue is the testimony of Dr. Marlon Rosendo H. Daza, an expert in the field of
physics. He conducted a study based on the following assumptions provided by respondents:

Two vehicles collided;

One vehicle is ten times heavier, more massive than the other;

Both vehicles were moving in the same direction and at the same speed of about 85 to 90 kilometers per hour;

The heavier vehicle was driving at the innermost left lane, while the lighter vehicle was at its right.

Dr. Daza testified that given the foregoing assumptions, if the lighter vehicle hits the right front portion of the heavier
vehicle, the general direction of the light vehicle after the impact would be to the right side of the heavy vehicle, not the
other way around. The truck, he opined, is more difficult to move as it is heavier. It is the car, the lighter vehicle, which
would move to the right of, and away from the truck. Thus, there is very little chance that the car will move towards the
opposite side, i.e., to the left of the truck.
Dr. Daza also gave a further study on the basis of the same assumptions except that the car is on the left side of the
truck, in accordance with the testimony of respondent Stephen Huang. Dr. Daza concluded that the general direction of
the car after impact would be to the left of the truck. In this situation, the middle island against which the car was
pinned would slow down the car, and enable the truck to catch up and hit the car again, before running over it.[8]

To support their thesis, petitioners tried to show the damages that the truck sustained at its front right side. The attempt
does not impress. The photographs presented were taken a month after the accident, and Rogelio Pantua, the
automechanic who repaired the truck and authenticated the photographs, admitted that there were damages also on
the left side of the truck.[9]

Worse still, petitioner Del Rosario further admitted that after the impact, he lost control of the truck and failed to apply
his brakes. Considering that the car was smaller and lighter than the six-wheeler truck, the impact allegedly caused by
the car when it hit the truck could not possibly be so great to cause petitioner to lose all control that he failed to even
step on the brakes. He testified, as follows:

ATTY. DIAZ:

May I proceed, Your Honor. You were able to apply the brakes, were you sir?

WITNESS:

No more, sir, because I went over the island.

ATTY. DIAZ:

Because as you said you lost control, correct sir?

WITNESS:

Yes, sir.

ATTY. DIAZ:

In other words, sir from the time your truck was hit according to you up to the time you rested on the shoulder, you
traveled fifty meters?

WITNESS:

Yes, sir, about that distance.

ATTY. DIAZ:
And this was despite the fact that you were only traveling at the speed of seventy five kilometers per hour, jumped over
the island, hit the lamppost, and traveled the three lanes of the opposite lane of C-5 highway, is that what you want to
impress upon this court?

WITNESS:

Yes, sir.[10]We therefore find no cogent reason to disturb the findings of the RTC and the Court of Appeals. The
evidence proves petitioner Del Rosario's negligence as the direct and proximate cause of the injuries suffered by
respondent Stephen Huang. Petitioner Del Rosario failed to do what a reasonable and prudent man would have done
under the circumstances.

We now come to the liability of petitioner Mercury Drug as employer of Del Rosario. Articles 2176 and 2180 of the Civil
Code provide:

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

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

xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.

x x xThe liability of the employer under Art. 2180 of the Civil Code is direct or immediate. It is not conditioned on a prior
recourse against the negligent employee, or a prior showing of insolvency of such employee. It is also joint and solidary
with the employee.[11]

To be relieved of liability, petitioner Mercury Drug should show that it exercised the diligence of a good father of a
family, both in the selection of the employee and in the supervision of the performance of his duties. Thus, in the
selection of its prospective employees, the employer is required to examine them as to their qualifications, experience,
and service records.[12] With respect to the supervision of its employees, the employer should formulate standard
operating procedures, monitor their implementation, and impose disciplinary measures for their breach. To establish
compliance with these requirements, employers must submit concrete proof, including documentary evidence.[13]

In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring procedure. According to Mrs.
Merlie Caamic, the Recruitment and Training Manager of petitioner Mercury Drug, applicants are required to take
theoretical and actual driving tests, and psychological examination. In the case of petitioner Del Rosario, however, Mrs.
Caamic admitted that he took the driving tests and psychological examination when he applied for the position of
Delivery Man, but not when he applied for the position of Truck Man. Mrs. Caamic also admitted that petitioner Del
Rosario used a Galant which is a light vehicle, instead of a truck during the driving tests. Further, no tests were
conducted on the motor skills development, perceptual speed, visual attention, depth visualization, eye and hand
coordination and steadiness of petitioner Del Rosario. No NBI and police clearances were also presented. Lastly,
petitioner Del Rosario attended only three driving seminars a on June 30, 2001, February 5, 2000 and July 7, 1984. In
effect, the only seminar he attended before the accident which occurred in 1996 was held twelve years ago in 1984.
It also appears that petitioner Mercury Drug does not provide for a back-up driver for long trips. At the time of the
accident, petitioner Del Rosario has been out on the road for more than thirteen hours, without any alternate. Mrs.
Caamic testified that she does not know of any company policy requiring back-up drivers for long trips.[14]

Petitioner Mercury Drug likewise failed to show that it exercised due diligence on the supervision and discipline over its
employees. In fact, on the day of the accident, petitioner Del Rosario was driving without a license. He was holding a TVR
for reckless driving. He testified that he reported the incident to his superior, but nothing was done about it. He was not
suspended or reprimanded.[15] No disciplinary action whatsoever was taken against petitioner Del Rosario. We
therefore affirm the finding that petitioner Mercury Drug has failed to discharge its burden of proving that it exercised
due diligence in the selection and supervision of its employee, petitioner Del Rosario.

We now consider the damages which respondents should recover from the petitioners.

The trial court awarded the following amounts:

Two Million Nine Hundred Seventy-Three Thousand Pesos (P2,973,000.00) actual damages;

As compensatory damages:

Twenty-Three Million Four Hundred Sixty One Thousand, and Sixty-Two Pesos (P23,461,062.00) for life care cost of
Stephen;

Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity of Stephen;

Four Million Pesos (P4,000,000.00) as moral damages;

Two Million Pesos (P2,000,000.00) as exemplary damages; and

One Million Pesos (P1,000,000.00) as attorney's fees and litigation expense.

The Court of Appeals affirmed the decision of the trial court but reduced the award of moral damages to P1,000,000.00.

With regard to actual damages, Art. 2199 of the Civil Code provides that "[E]xcept as provided by law or by stipulation
one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved x x x." In
the instant case, we uphold the finding that the actual damages claimed by respondents were supported by receipts.
The amount of P2,973,000.00 represented cost of hospital expenses, medicines, medical services and supplies, and
nursing care services provided respondent Stephen from December 20, 1996, the day of the accident, until December
1998.

Petitioners are also liable for all damages which are the natural and probable consequences of the act or omission
complained of.[16] The doctors who attended to respondent Stephen are one in their prognosis that his chances of
walking again and performing basic body functions are nil. For the rest of his life, he will need continuous rehabilitation
and therapy to prevent further complications such as pneumonia, bladder and rectum infection, renal failure, sepsis and
severe bed sores, osteoporosis and fractures, and other spinal cord injury-related conditions. He will be completely
dependent on the care and support of his family. We thus affirm the award of P23,461,062.00 for the life care cost of
respondent Stephen Huang, based on his average monthly expense and the actuarial computation of the remaining
years that he is expected to live; and the conservative amount of P10,000,000.00, as reduced by the trial court, for the
loss or impairment of his earning capacity,[17] considering his age, probable life expectancy, the state of his health, and
his mental and physical condition before the accident. He was only seventeen years old, nearly six feet tall and weighed
175 pounds. He was in fourth year high school, and a member of the school varsity basketball team. He was also class
president and editor-in-chief of the school annual. He had shown very good leadership qualities. He was looking forward
to his college life, having just passed the entrance examinations of the University of the Philippines, De La Salle
University, and the University of Asia and the Pacific. The University of Sto. Tomas even offered him a chance to obtain
an athletic scholarship, but the accident prevented him from attending the basketball try-outs. Without doubt, he was
an exceptional student. He excelled both in his academics and extracurricular undertakings. He is intelligent and
motivated, a go-getter, as testified by Francisco Lopez, respondent Stephen Huang's godfather and a bank executive.[18]
Had the accident not happened, he had a rosy future ahead of him. He wanted to embark on a banking career, get
married and raise children. Taking into account his outstanding abilities, he would have enjoyed a successful
professional career in banking. But, as Mr. Lopez stated, it is highly unlikely for someone like respondent to ever secure
a job in a bank. To his knowledge, no bank has ever hired a person suffering with the kind of disability as Stephen
Huang's.[19]

We likewise uphold the award of moral and exemplary damages and attorney's fees.

"The award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo
ante."[20] Moral damages are designed to compensate and alleviate in some way the physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury
unjustly caused a person. Although incapable of pecuniary computation, they must be proportionate to the suffering
inflicted.[21] The amount of the award bears no relation whatsoever with the wealth or means of the offender.

In the instant case, respondent Stephen Huang and respondent spouses Richard and Carmen Huang testified to the
intense suffering they continue to experience as a result of the accident. Stephen recounted the nightmares and
traumas he suffers almost every night when he relives the accident. He also gets depression when he thinks of his bleak
future. He feels frustration and embarrassment in needing to be helped with almost everything and in his inability to do
simple things he used to do. Similarly, respondent spouses and the rest of the family undergo their own private
suffering. They live with the day-to-day uncertainty of respondent Stephen Huang's condition. They know that the
chance of full recovery is nil. Moreover, respondent Stephen Huang's paralysis has made him prone to many other
illnesses. His family, especially respondent spouses, have to make themselves available for Stephen twenty-four hours a
day. They have patterned their daily life around taking care of him, ministering to his daily needs, altering the lifestyle to
which they had been accustomed.

Respondent Carmen Huang's brother testified on the insensitivity of petitioner Mercury Drug towards the plight of
respondent. Stephen, viz.:

Maybe words cannot describe the anger that we feel towards the defendants. All the time that we were going through
the crisis, there was none (sic) a single sign of nor offer of help, any consolation or anything whatsoever. It is funny
because, you know, I have many colleagues, business associates, people even as far as United States, Japan, that I
probably met only once, when they found out, they make a call, they sent card, they write small notes, but from the
defendant, absolute silence. They didn't care, and worst, you know, this is a company that have (sic) all the resources to
help us. They were (sic) on our part, it was doubly painful because we have no choice but to go back to them and buy
the medicines that we need for Stephen. So, I don't know how someone will really have no sense of decency at all to at
least find out what happened to my son, what is his condition, or if there is anything that they can do to help us.[22]On
the matter of exemplary damages, Art. 2231 of the Civil Code provides that in cases of quasi-delicts, exemplary damages
may be granted if the defendant acted with gross negligence. The records show that at the time of the accident,
petitioner Del Rosario was driving without a license because he was previously ticketed for reckless driving. The
evidence also shows that he failed to step on his brakes immediately after the impact. Had petitioner Del Rosario done
so, the injuries which respondent Stephen sustained could have been greatly reduced. Wanton acts such as that
committed by petitioner Del Rosario need be suppressed; and employers like petitioner Mercury Drug should be more
circumspect in the observance of due diligence in the selection and supervision of their employees. The award of
exemplary damages in favor of the respondents is therefore justified.
With the award of exemplary damages, we also affirm the grant of attorney's fees to respondents.[23] In addition,
attorney's fees may be granted when a party is compelled to litigate or incur expenses to protect his interest by reason
of an unjustified act of the other party.[24]

Cost against petitioners.

IN VIEW THEREOF, the petition is DENIED. The Decision and Resolution of the Court of Appeals dated February 16, 2006
and March 30, 2006, respectively, in CA-G.R. CV No. 83981, are AFFIRMED.

SO ORDERED.

Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur.

Title

Mercury Drug Corp. vs. Spouses Huang

Case

G.R. No. 172122

Decision Date

Jun 22, 2007

Mercury Drug Corporation and its truck driver are held liable for a road accident that caused severe injuries and
extensive damage to a car, as they failed to exercise due diligence in the selection and supervision of their employee.
The court affirms the award of damages to the respondents to compensate for their physical and emotional suffering
and to deter future negligence.

road accident

severe injuries

extensive damage Show more tags (13)

552 Phil. 496

FIRST DIVISION

[ G.R. NO. 172122, June 22, 2007 ]

MERCURY DRUG CORPORATION AND ROLANDO J. DEL ROSARIO, PETITIONERS, VS. SPOUSES RICHARD HUANG AND
CARMEN HUANG, AND STEPHEN HUANG, RESPONDENTS.

DECISION

PUNO, C.J.:

On appeal are the Decision[1] and Resolution[2] of the Court of Appeals in CA-G.R. CV No. 83981, dated February 16,
2006 and March 30, 2006, respectively which affirmed with modification the Decision[3] of the Regional Trial Court (RTC)
of Makati City, dated September 29, 2004. The trial court found petitioners jointly and severally liable to pay
respondents damages for the injuries sustained by respondent Stephen Huang, son of respondent spouses Richard and
Carmen Huang.

First, the facts:

Petitioner Mercury Drug Corporation (Mercury Drug) is the registered owner of a six-wheeler 1990 Mitsubishi Truck with
plate number PRE 641 (truck). It has in its employ petitioner Rolando J. del Rosario as driver. Respondent spouses
Richard and Carmen Huang are the parents of respondent Stephen Huang and own the red 1991 Toyota Corolla GLI
Sedan with plate number PTT 775 (car).

These two vehicles figured in a road accident on December 20, 1996 at around 10:30 p.m. within the municipality of
Taguig, Metro Manila. Respondent Stephen Huang was driving the car, weighing 1,450 kg., while petitioner Del Rosario
was driving the truck, weighing 14,058 kg. Both were traversing the C-5 Highway, north bound, coming from the general
direction of Alabang going to Pasig City. The car was on the left innermost lane while the truck was on the next lane to
its right, when the truck suddenly swerved to its left and slammed into the front right side of the car. The collision hurled
the car over the island where it hit a lamppost, spun around and landed on the opposite lane. The truck also hit a
lamppost, ran over the car and zigzagged towards, and finally stopped in front of Buellah Land Church.
At the time of the accident, petitioner Del Rosario only had a Traffic Violation Receipt (TVR). His driver's license had been
confiscated because he had been previously apprehended for reckless driving.

The car, valued at P300,000.00, was a total wreck. Respondent Stephen Huang sustained massive injuries to his spinal
cord, head, face, and lung. Despite a series of operations, respondent Stephen Huang is paralyzed for life from his chest
down and requires continuous medical and rehabilitation treatment.

Respondents fault petitioner Del Rosario for committing gross negligence and reckless imprudence while driving, and
petitioner Mercury Drug for failing to exercise the diligence of a good father of a family in the selection and supervision
of its driver.

In contrast, petitioners allege that the immediate and proximate cause of the accident was respondent Stephen Huang's
recklessness. According to petitioner Del Rosario, he was driving on the left innermost lane when the car bumped the
truck's front right tire. The truck then swerved to the left, smashed into an electric post, crossed the center island, and
stopped on the other side of the highway. The car likewise crossed over the center island and landed on the same
portion of C-5. Further, petitioner Mercury Drug claims that it exercised due diligence of a good father of a family in the
selection and supervision of all its employees.

The trial court, in its Decision dated September 29, 2004, found petitioners Mercury Drug and Del Rosario jointly and
severally liable to pay respondents actual, compensatory, moral and exemplary damages, attorney's fees, and litigation
expenses. The dispositive portion reads:

WHEREFORE, judgment is rendered finding defendants Mercury Drug Corporation, Inc. and Rolando del Rosario, jointly
and severally liable to pay plaintiffs Spouses Richard Y. Huang and Carmen G. Huang, and Stephen Huang the following
amounts:

Two Million Nine Hundred Seventy Three Thousand Pesos (P2,973,000.00) actual damages;

As compensatory damages:

Twenty Three Million Four Hundred Sixty One Thousand, and Sixty-Two Pesos (P23,461,062.00) for life care cost of
Stephen;

Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity of Stephen;

Four Million Pesos (P4,000,000.00) as moral damages;

Two Million Pesos (P2,000,000.00) as exemplary damages; and

One Million Pesos (P1,000,000.00) as attorneys fees and litigation expense.[4]

On February 16, 2006, the Court of Appeals affirmed the decision of the trial court but reduced the award of moral
damages to P1,000,000.00. The appellate court also denied the motion for reconsideration filed by petitioners.

Hence, this appeal.

Petitioners cite the following grounds for their appeal:

That the subject Decision which dismissed the appeal of petitioners herein but AFFIRMED WITH MODIFICATION the
decision of the Regional Trial Court, Branch 64, Makati City, in that the award of moral damages was reduced to
P1,000,000.00 and its Resolution dated March 30, 2006, which dismissed outright the Motion for Reconsideration must
be set aside because the Honorable Court of Appeals committed reversible error:

IN DENYING OUTRIGHTLY THE MOTION FOR RECONSIDERATION ON ALLEGEDLY BEING FILED OUT OF TIME FOR ONE
DAY;

IN ACCORDING GREATER WEIGHT TO THE EVIDENCE ADDUCED BY THE RESPONDENTS HEREIN AND COMPLETELY
DISREGARDING THE DEFENSE INTERPOSED BY THE PETITIONERS HEREIN;

IN DISREGARDING COMPLETELY ALL EVIDENCES PRESENTED BY THE PETITIONERS HEREIN AND PROCEEDED TO RENDER
ITS DECISION BASED ON PRESUMPTIONS AND PERSONAL OPINIONS OF PEOPLE WHO ARE NOT WITNESSES TO THE
ACCIDENT;

IN AWARDING DAMAGES IN FAVOR OF RESPONDENTS HEREIN;

IN FINDING THAT MERCURY DRUG CORPORATION FAILED TO EXERCISE THE DILIGENCE REQUIRED IN SUPERVISING ITS
EMPLOYEES DESPITE OVERWHELMING EVIDENCE PRESENTED BY PETITIONER COMPANY;

IN FINDING THAT PETITIONER ROLANDO DEL ROSARIO WAS NEGLIGENT IN DRIVING THE TRUCK AT THE TIME OF
ACCIDENT AND TOTALLY DISREGARDING THE EVIDENCES PRESENTED DURING THE TRIAL OF THE CASE.

IN PRESENTING ONLY IN THE DECISION TESTIMONIES FAVORABLE TO THE RESPONDENTS HEREIN AND COMPLETELY
DISREGARDING THE EVIDENCES PRESENTED BY THE PETITIONERS HEREIN WHICH CONTRADICTED SUCH TESTIMONIES
NOT ONLY THROUGH ORAL TESTIMONIES BUT AS WELL AS DOCUMENTARY EVIDENCES.[5]

We affirm the findings of the trial court and the appellate court that petitioner Del Rosario was negligent. The evidence
does not support petitioners' claim that at the time of the accident, the truck was at the left inner lane and that it was
respondent Stephen Huang's car, at its right, which bumped the right front side of the truck. Firstly, petitioner Del
Rosario could not precisely tell which part of the truck was hit by the car,[6] despite the fact that the truck was snub-
nosed and a lot higher than the car. Petitioner Del Rosario could not also explain why the car landed on the opposite
lane of C-5 which was on its left side. He said that "the car did not pass in front of him after it hit him or under him or
over him or behind him."[7] If the truck were really at the left lane and the car were at its right, and the car hit the truck
at its front right side, the car would not have landed on the opposite side, but would have been thrown to the right side
of the C-5 Highway. Noteworthy on this issue is the testimony of Dr. Marlon Rosendo H. Daza, an expert in the field of
physics. He conducted a study based on the following assumptions provided by respondents:

Two vehicles collided;

One vehicle is ten times heavier, more massive than the other;

Both vehicles were moving in the same direction and at the same speed of about 85 to 90 kilometers per hour;

The heavier vehicle was driving at the innermost left lane, while the lighter vehicle was at its right.

Dr. Daza testified that given the foregoing assumptions, if the lighter vehicle hits the right front portion of the heavier
vehicle, the general direction of the light vehicle after the impact would be to the right side of the heavy vehicle, not the
other way around. The truck, he opined, is more difficult to move as it is heavier. It is the car, the lighter vehicle, which
would move to the right of, and away from the truck. Thus, there is very little chance that the car will move towards the
opposite side, i.e., to the left of the truck.
Dr. Daza also gave a further study on the basis of the same assumptions except that the car is on the left side of the
truck, in accordance with the testimony of respondent Stephen Huang. Dr. Daza concluded that the general direction of
the car after impact would be to the left of the truck. In this situation, the middle island against which the car was
pinned would slow down the car, and enable the truck to catch up and hit the car again, before running over it.[8]

To support their thesis, petitioners tried to show the damages that the truck sustained at its front right side. The attempt
does not impress. The photographs presented were taken a month after the accident, and Rogelio Pantua, the
automechanic who repaired the truck and authenticated the photographs, admitted that there were damages also on
the left side of the truck.[9]

Worse still, petitioner Del Rosario further admitted that after the impact, he lost control of the truck and failed to apply
his brakes. Considering that the car was smaller and lighter than the six-wheeler truck, the impact allegedly caused by
the car when it hit the truck could not possibly be so great to cause petitioner to lose all control that he failed to even
step on the brakes. He testified, as follows:

ATTY. DIAZ:

May I proceed, Your Honor. You were able to apply the brakes, were you sir?

WITNESS:

No more, sir, because I went over the island.

ATTY. DIAZ:

Because as you said you lost control, correct sir?

WITNESS:

Yes, sir.

ATTY. DIAZ:

In other words, sir from the time your truck was hit according to you up to the time you rested on the shoulder, you
traveled fifty meters?

WITNESS:

Yes, sir, about that distance.

ATTY. DIAZ:
And this was despite the fact that you were only traveling at the speed of seventy five kilometers per hour, jumped over
the island, hit the lamppost, and traveled the three lanes of the opposite lane of C-5 highway, is that what you want to
impress upon this court?

WITNESS:

Yes, sir.[10]We therefore find no cogent reason to disturb the findings of the RTC and the Court of Appeals. The
evidence proves petitioner Del Rosario's negligence as the direct and proximate cause of the injuries suffered by
respondent Stephen Huang. Petitioner Del Rosario failed to do what a reasonable and prudent man would have done
under the circumstances.

We now come to the liability of petitioner Mercury Drug as employer of Del Rosario. Articles 2176 and 2180 of the Civil
Code provide:

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

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

xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.

x x xThe liability of the employer under Art. 2180 of the Civil Code is direct or immediate. It is not conditioned on a prior
recourse against the negligent employee, or a prior showing of insolvency of such employee. It is also joint and solidary
with the employee.[11]

To be relieved of liability, petitioner Mercury Drug should show that it exercised the diligence of a good father of a
family, both in the selection of the employee and in the supervision of the performance of his duties. Thus, in the
selection of its prospective employees, the employer is required to examine them as to their qualifications, experience,
and service records.[12] With respect to the supervision of its employees, the employer should formulate standard
operating procedures, monitor their implementation, and impose disciplinary measures for their breach. To establish
compliance with these requirements, employers must submit concrete proof, including documentary evidence.[13]

In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring procedure. According to Mrs.
Merlie Caamic, the Recruitment and Training Manager of petitioner Mercury Drug, applicants are required to take
theoretical and actual driving tests, and psychological examination. In the case of petitioner Del Rosario, however, Mrs.
Caamic admitted that he took the driving tests and psychological examination when he applied for the position of
Delivery Man, but not when he applied for the position of Truck Man. Mrs. Caamic also admitted that petitioner Del
Rosario used a Galant which is a light vehicle, instead of a truck during the driving tests. Further, no tests were
conducted on the motor skills development, perceptual speed, visual attention, depth visualization, eye and hand
coordination and steadiness of petitioner Del Rosario. No NBI and police clearances were also presented. Lastly,
petitioner Del Rosario attended only three driving seminars a on June 30, 2001, February 5, 2000 and July 7, 1984. In
effect, the only seminar he attended before the accident which occurred in 1996 was held twelve years ago in 1984.
It also appears that petitioner Mercury Drug does not provide for a back-up driver for long trips. At the time of the
accident, petitioner Del Rosario has been out on the road for more than thirteen hours, without any alternate. Mrs.
Caamic testified that she does not know of any company policy requiring back-up drivers for long trips.[14]

Petitioner Mercury Drug likewise failed to show that it exercised due diligence on the supervision and discipline over its
employees. In fact, on the day of the accident, petitioner Del Rosario was driving without a license. He was holding a TVR
for reckless driving. He testified that he reported the incident to his superior, but nothing was done about it. He was not
suspended or reprimanded.[15] No disciplinary action whatsoever was taken against petitioner Del Rosario. We
therefore affirm the finding that petitioner Mercury Drug has failed to discharge its burden of proving that it exercised
due diligence in the selection and supervision of its employee, petitioner Del Rosario.

We now consider the damages which respondents should recover from the petitioners.

The trial court awarded the following amounts:

Two Million Nine Hundred Seventy-Three Thousand Pesos (P2,973,000.00) actual damages;

As compensatory damages:

Twenty-Three Million Four Hundred Sixty One Thousand, and Sixty-Two Pesos (P23,461,062.00) for life care cost of
Stephen;

Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity of Stephen;

Four Million Pesos (P4,000,000.00) as moral damages;

Two Million Pesos (P2,000,000.00) as exemplary damages; and

One Million Pesos (P1,000,000.00) as attorney's fees and litigation expense.

The Court of Appeals affirmed the decision of the trial court but reduced the award of moral damages to P1,000,000.00.

With regard to actual damages, Art. 2199 of the Civil Code provides that "[E]xcept as provided by law or by stipulation
one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved x x x." In
the instant case, we uphold the finding that the actual damages claimed by respondents were supported by receipts.
The amount of P2,973,000.00 represented cost of hospital expenses, medicines, medical services and supplies, and
nursing care services provided respondent Stephen from December 20, 1996, the day of the accident, until December
1998.

Petitioners are also liable for all damages which are the natural and probable consequences of the act or omission
complained of.[16] The doctors who attended to respondent Stephen are one in their prognosis that his chances of
walking again and performing basic body functions are nil. For the rest of his life, he will need continuous rehabilitation
and therapy to prevent further complications such as pneumonia, bladder and rectum infection, renal failure, sepsis and
severe bed sores, osteoporosis and fractures, and other spinal cord injury-related conditions. He will be completely
dependent on the care and support of his family. We thus affirm the award of P23,461,062.00 for the life care cost of
respondent Stephen Huang, based on his average monthly expense and the actuarial computation of the remaining
years that he is expected to live; and the conservative amount of P10,000,000.00, as reduced by the trial court, for the
loss or impairment of his earning capacity,[17] considering his age, probable life expectancy, the state of his health, and
his mental and physical condition before the accident. He was only seventeen years old, nearly six feet tall and weighed
175 pounds. He was in fourth year high school, and a member of the school varsity basketball team. He was also class
president and editor-in-chief of the school annual. He had shown very good leadership qualities. He was looking forward
to his college life, having just passed the entrance examinations of the University of the Philippines, De La Salle
University, and the University of Asia and the Pacific. The University of Sto. Tomas even offered him a chance to obtain
an athletic scholarship, but the accident prevented him from attending the basketball try-outs. Without doubt, he was
an exceptional student. He excelled both in his academics and extracurricular undertakings. He is intelligent and
motivated, a go-getter, as testified by Francisco Lopez, respondent Stephen Huang's godfather and a bank executive.[18]
Had the accident not happened, he had a rosy future ahead of him. He wanted to embark on a banking career, get
married and raise children. Taking into account his outstanding abilities, he would have enjoyed a successful
professional career in banking. But, as Mr. Lopez stated, it is highly unlikely for someone like respondent to ever secure
a job in a bank. To his knowledge, no bank has ever hired a person suffering with the kind of disability as Stephen
Huang's.[19]

We likewise uphold the award of moral and exemplary damages and attorney's fees.

"The award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo
ante."[20] Moral damages are designed to compensate and alleviate in some way the physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury
unjustly caused a person. Although incapable of pecuniary computation, they must be proportionate to the suffering
inflicted.[21] The amount of the award bears no relation whatsoever with the wealth or means of the offender.

In the instant case, respondent Stephen Huang and respondent spouses Richard and Carmen Huang testified to the
intense suffering they continue to experience as a result of the accident. Stephen recounted the nightmares and
traumas he suffers almost every night when he relives the accident. He also gets depression when he thinks of his bleak
future. He feels frustration and embarrassment in needing to be helped with almost everything and in his inability to do
simple things he used to do. Similarly, respondent spouses and the rest of the family undergo their own private
suffering. They live with the day-to-day uncertainty of respondent Stephen Huang's condition. They know that the
chance of full recovery is nil. Moreover, respondent Stephen Huang's paralysis has made him prone to many other
illnesses. His family, especially respondent spouses, have to make themselves available for Stephen twenty-four hours a
day. They have patterned their daily life around taking care of him, ministering to his daily needs, altering the lifestyle to
which they had been accustomed.

Respondent Carmen Huang's brother testified on the insensitivity of petitioner Mercury Drug towards the plight of
respondent. Stephen, viz.:

Maybe words cannot describe the anger that we feel towards the defendants. All the time that we were going through
the crisis, there was none (sic) a single sign of nor offer of help, any consolation or anything whatsoever. It is funny
because, you know, I have many colleagues, business associates, people even as far as United States, Japan, that I
probably met only once, when they found out, they make a call, they sent card, they write small notes, but from the
defendant, absolute silence. They didn't care, and worst, you know, this is a company that have (sic) all the resources to
help us. They were (sic) on our part, it was doubly painful because we have no choice but to go back to them and buy
the medicines that we need for Stephen. So, I don't know how someone will really have no sense of decency at all to at
least find out what happened to my son, what is his condition, or if there is anything that they can do to help us.[22]On
the matter of exemplary damages, Art. 2231 of the Civil Code provides that in cases of quasi-delicts, exemplary damages
may be granted if the defendant acted with gross negligence. The records show that at the time of the accident,
petitioner Del Rosario was driving without a license because he was previously ticketed for reckless driving. The
evidence also shows that he failed to step on his brakes immediately after the impact. Had petitioner Del Rosario done
so, the injuries which respondent Stephen sustained could have been greatly reduced. Wanton acts such as that
committed by petitioner Del Rosario need be suppressed; and employers like petitioner Mercury Drug should be more
circumspect in the observance of due diligence in the selection and supervision of their employees. The award of
exemplary damages in favor of the respondents is therefore justified.
With the award of exemplary damages, we also affirm the grant of attorney's fees to respondents.[23] In addition,
attorney's fees may be granted when a party is compelled to litigate or incur expenses to protect his interest by reason
of an unjustified act of the other party.[24]

Cost against petitioners.

IN VIEW THEREOF, the petition is DENIED. The Decision and Resolution of the Court of Appeals dated February 16, 2006
and March 30, 2006, respectively, in CA-G.R. CV No. 83981, are AFFIRMED.

SO ORDERED.

Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur.

Title

Maitim vs. Aguila

Case

G.R. No. 218344

Decision Date

Mar 21, 2022

A petition for review on certiorari is filed by Jessica Maitim, seeking to overturn the decision that held her solidarily
liable for damages caused by her driver's negligence in a vehicular accident, but the Supreme Court ruled in favor of the
decision, upholding the doctrine of vicarious liability and holding Maitim responsible for the damages.

vehicular accident

solidary liability

doctrine of vicarious liability Show more tags (8)

SECOND DIVISION

[ G.R. No. 218344, March 21, 2022 ]

JESSICA P. MAITIM A.K.A. "JEAN GARCIA," PETITIONER, VS. MARIA THERESA P. AGUILA, RESPONDENT.

DECISION

HERNANDO, J.:[**]

Before this Court is a petition for review on certiorari[1] under Rule 45 of the Rules of Court, seeking to set aside the
June 30, 2014 Decision[2] and May 19, 2015 Resolution[3] of the Court of Appeals (CA) in CA-G.R. CV No. 100354.

The facts of the case are as follows:

Petitioner Jessica Maitim (Maitim) and respondent Maria Theresa P. Aguila (Aguila) were residents of Grand Pacific
Manor Townhouse.[4] Their respective townhouse units are approximately nine meters apart, separated only by a
driveway jointly used by the townhouse unit owners.[5]

On April 25, 2006, Maitim was on board her vehicle, a Ford W-150 Chateau Wagon registered under her name, which
was being driven by Restituto Santos (Santos), her driver for 12 years.[6] While they were driving along the common
driveway, Angela Aserehet P. Aguila (Angela), the six-year old daughter of Aguila, was sideswiped by Maitim's vehicle.[7]
Angela was dragged for about three meters resulting to her right leg being fractured.[8]

Maitim and Santos did not immediately take Angela to the hospital after the incident; she was only brought to St. Luke's
Medical Center after the insistence of Angela's grandmother, Lirio Aguila.[9] Angela was diagnosed to have suffered
swelling, hematoma, multiple abrasions, and displaced, complete fracture on the right leg.[10] Thus, she underwent
operation at Asian Hospital and was in a wheelchair from April 25, 2006 to July 18, 2006.[11]
The incident was referred to the barangay for conciliation but only Aguila appeared. At this point, Aguila's actual
expenses amounted to P169,187.32.[12] Aguila then sent demand letters to Maitim and Santos to no avail.[13] Thus,
Aguila filed the instant action for damages based on quasi-delict before the Regional Trial Court (RTC).[14]

In her defense, Maitim denied Aguila's accusations and claimed that on April 25, 2006, while she was in her vehicle being
driven slowly by Santos, Angela suddenly came running and due to this, the latter's right leg was sideswiped and got
fractured.[15] Maitim alleged that her vehicle was covered by a comprehensive insurance that included third-party
liability, but she was not able to file for insurance claim due to Aguila's refusal to submit the necessary documents, i.e.,
police report, medical report, and receipts of actual expenses.[16] Furthermore, Maitim maintained that Santos, who
was her driver for 12 years, was driving with care at the time of the incident, and thus, Maitim should not be made liable
for vicarious liability because she exercised due diligence in the selection and supervision of her employee.[17]

Ruling of the Regional Trial Court:

In its Decision dated July 27, 2012, the RTC rendered judgment in favor of Aguila.[18] The RTC held that Santos was
presumed to be negligent, applying the doctrine of res ipsa loquitur, and that Maitim was vicariously liable for her failure
to prove that she exercised due diligence in the selection and supervision of her employee, Santos.[19] The dispositive
portion of the Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff.

Accordingly, defendants Jessica P. Maitim and Restituto A. Santos are ordered to solidarily pay the plaintiff the following:

1. the amount of One Hundred Sixty-Nine Thousand One Hundred Eighty-Seven Pesos and 32/100 (P169,187.32) as and
for actual damages;

2. the amount of Twenty Thousand Pesos (P20,000.00) as and for moral damages; and

3. the amount of Twenty-Five Thousand Pesos (P25,000.00) as and for attorney's fees.

SO ORDERED.[20]Aggrieved, Maitim appealed with the CA.

Ruling of the Court of Appeals:

On June 30, 2014, the CA denied Maitim's appeal and affirmed the RTC decision in toto.[21] The dispositive portion of
the CA Decision reads:

WHEREFORE, the Decision of the Regional Trial Court, Branch 100, of Quezon City dated July 27, 2012 is AFFIRMED in
toto.

SO ORDERED.[22]In its Decision, the CA ruled that Maitim and Santos are solidarily liable for damages, and that there
was no contributory negligence on the part of Aguila and her daughter.[23] Aguila did not commit any negligence in
allowing Angela to exit their door towards the car garage since they were still within the premises of their residence, and
not on the street where vehicles ordinarily drive by.[24] Moreover, the CA cited the case of Jarco Marketing Corporation
v. Court of Appeals,[25] which established that children under nine years of age are conclusively presumed in our
jurisdiction to be incapable of contributory negligence.[26] This supported its conclusion that Angela, being merely six-
years old at the time of the incident, cannot be liable for contributory negligence as she is conclusively presumed to be
incapable of contributory negligence.[27]
Maitim moved for reconsideration but it was denied in a Resolution dated May 19, 2015 by the CA.[28]

Hence, the instant petition.

Our Ruling

The petition has no merit.

Preliminarily, it must be reiterated that the factual findings of the trial court, especially those which revolve around
matters of credibility of witnesses deserve to be respected when no glaring errors bordering on a gross misapprehension
of the facts, or where no speculative, arbitrary and unsupported conclusions, can be gleaned from such findings.[29] The
evaluation of the credibility of witnesses and their testimonies are best undertaken by the trial court because of its
unique opportunity to observe the witnesses' deportment, demeanor, conduct and attitude under grueling examination.
[30] Such findings of the trial court are even more convincing when affirmed by the CA, as in this case.

With this in mind, this Court shall now discuss the merits of the present petition.

The CA committed no reversible

error in affirming the RTC

Decision.

The petition raises the lone issue of whether or not the CA committed a reversible error when it affirmed the RTC
Decision finding Maitim solidarity liable under the doctrine of vicarious liability.[31]

This Court rules in the negative.

First, it must be noted that the RTC correctly applied the doctrine of res ipsa loquitur when it ruled that Santos should be
presumed negligent, and thus, had the burden of proving such presumption otherwise.

The doctrine of res ipsa loquitur was eruditely expounded upon in the case of Solidum vs. People[32] as follows:

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa loquitur
means that "where the thing which causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those who have the management use proper care,
it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of
care." It is simply "a recognition of the postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence.
It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident itself...." (Underscoring supplied)In
UPCB General Insurance Co. v. Pascual Liner, Inc.,[33] this Court reiterated the applicability of res ipsa loquitur in
vehicular accidents, wherein it is sufficient that the accident itself be established, and once established through the
admission of evidence, whether hearsay or not, the rule on res ipsa loquitur already starts to apply.[34]
As applied in the instant case, the fact that Angela was hit by a moving vehicle owned by Maitim and driven by Santos is
undisputed, and the same is supported by the Traffic Accident Investigation Report dated April 25, 2006.[35] The fact
that Angela sustained injuries in her collision with Maitim's vehicle is also not in question.[36] Thus, since it is clearly
established that there was a vehicular accident that caused injuries, then the rule on res ipsa loquitur shall apply. An
inference of negligence on the part of Santos, the person who controls the instrumentality (vehicle) causing the injury,
arises, and he has the burden of presenting proof to the contrary.

As will be discussed below, this Court finds that the lower courts justly held that Santos failed to discharge this burden
and consequently, the presumption of negligence lodged towards him shall stand.

Ordinarily, driving inside a relatively narrow driveway shared by two houses would not result to children being hit and
their bones fractured. This is because a reasonably prudent man, especially an alleged experienced driver, would have
foreseen that the residents of the houses may exit towards the common driveway anytime, including young and playful
children who may suddenly run across or along said driveway. Thus, a reasonably prudent man is expected to drive with
utmost caution when traversing the said driveway, even if given a "clear" signal by a guard.

In fact, Maitim herself admits that there is a natural tendency to drive at a slow speed when in a narrow driveway.[37]
However, her allegation that Santos was driving at a slow speed, which is admittedly "natural," contradicts the
circumstances surrounding Angela's injury. If Santos truly drove slowly and with care, he should have been able to have
ample opportunity to brake or otherwise steer the vehicle out of trouble, both of which did not happen in this case.

Moreover, even if a running child were to get hit by a slow-moving vehicle, it is highly unlikely that the same would
result to injuries so severe that it required surgery and afterwards being confined to a wheelchair for more than two
months.[38]

In sum, there is nothing natural about a child getting dragged for three meters and her leg being completely fractured by
a slow-moving vehicle, especially if a reasonably prudent man was driving the vehicle with care. Thus, both the RTC and
CA were right in finding negligence on the part of Santos.

Furthermore, the presumption of negligence on the part of Santos was not overcome by Maitim, who presented no
rebuttal evidence and instead merely alleged that Santos was driving with due care and was not speeding. This Court has
repeatedly emphasized that allegations, on their own, have no probative value and cannot be considered as proof.[39]
Therefore, since Maitim failed to present any evidence to the contrary, the presumption of negligence on the part of
Santos stands and is deemed conclusive.

Maitim failed to prove that she

was not vicariously liable in this

case.

Article 2176 of the Civil Code provides:

Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.In relation to the provision above, Article 2180 of
the Civil Code provides the basis for the concept of vicarious liability in our jurisdiction, to wit:

Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor
children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live
in their company.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.

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

The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused
by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be
applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their custody.

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage. (Underscoring supplied)Jurisprudence has established that
under Article 2180, "when an injury is caused by the negligence of the employee, there instantly arises a presumption of
law that there was negligence on the part of the master or employer either in the selection of the servant or employee,
or in supervision over him after selection or both."[40] "The liability of the employer under Article 2180 is direct and
immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the
insolvency of such employee."[41]

Applying these concepts to the present case, the finding of negligence against Santos gave rise to the presumption of
negligence on the part of Maitim in the latter's selection and/or supervision of the former. Therefore, it is incumbent
upon Maitim to prove that she exercised the diligence of a good father of a family in the selection and supervision of her
employee, Santos.

In her petition, Maitim stubbornly insists that she cannot be held vicariously liable because she alleges that Santos has
an unblemished 12-year driving record, and that before Santos was hired, he was required to submit a police clearance
and an NBI clearance.[42] However, she presented no evidence to corroborate or support her bare, self-serving
allegations. This Court has constantly held that bare allegations cannot be considered as proof,[43] especially when,
such as in this case, the records are barren of any evidence that would support such allegations.

In Filipinas Synthetic Fiber Corporation v. De Los Santos,[44] this Court outlined the quantum of proof established by
jurisprudence in cases involving vicarious liability, to wit:

Petitioner asserts that it had submitted and presented during trial, numerous documents in support of its claim that it
had exercised the proper diligence in both the selection and supervision of its employees. Among those proofs are
documents showing Mejia's proficiency and physical examinations, as well as his NBI clearances. The Employee Staff
Head of the Human Resource Division of the petitioner also testified that Mejia was constantly under supervision and
was given daily operational briefings. Nevertheless, the RTC and the CA were correct in finding those pieces of evidence
presented by the petitioner insufficient.

In Manliclic v. Calaunan, this Court ruled that:

In the selection of prospective employees, employers are required to examine them as to their qualifications, experience
and service records. In the supervision of employees, the employer must formulate standard operating procedures,
monitor their implementation and impose disciplinary measures for the breach thereof. To fend off vicarious liability,
employers must submit concrete proof, including documentary evidence, that they complied with everything that was
incumbent on them.In Metro Manila Transit Corporation v. Court of Appeals, it was explained that:

Due diligence in the supervision of employees on the other hand, includes the formulation of suitable rules and
regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the
public and persons with whom the employer has relations through his or its employees and the imposition of necessary
disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and
monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through
dependable supervisors who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and
plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring and
supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer,
the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual
supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies, without
anything more, is decidedly not sufficient to overcome such presumption.

We emphatically reiterate our holding, as a warning to all employers, that "the formulation of various company policies
on safety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising
from negligence of its employees. It is incumbent upon petitioner to show that in recruiting and employing the erring
driver the recruitment procedures and company policies on efficiency and safety were followed." x x x. (Emphasis
supplied; citations omitted)Given the above, Maitim's attempt to deflect liability clearly falls short as she was not able to
present concrete proof that she exercised the care and diligence of a good father of a family in the selection and
supervision of her employee, Santos. Therefore, the presumption of negligence against her stands, and she must be held
solidarily liable with Santos.

There was no contributory

negligence on the part of Aguila.

In her petition, Maitim imputes contributory negligence on Aguila for not properly taking care or attending to her
daughter, which allegedly enabled the latter to exit their house towards the driveway.[45] This position is untenable.

The evidence on record shows that the driveway was a common area to both parties' townhouse units, which meant
that the driveway is as much a part of Aguila's residence as it is of Maitim's. It was also found that Angela was not just
running or loitering around but was actually on her way to board their car.[46] Given these circumstances, this Court
sees no negligence on the part of Aguila when she allowed Angela to exit their door and walk towards their garage.
There is a reasonable expectation of safety, considering that the driveway is still within the premises of their residence
and not on the street where vehicles ordinarily drive by. Moreover, given the location and relatively narrow profile of
the driveway, it can be reasonably expected that anyone who traverses such driveway with a motor vehicle would drive
slowly and with utmost caution.

Therefore, there being no contributory negligence on the part of Angela and Aguila, and with Maitim and Santos being
unable to rebut the presumption of negligence lodged towards them in their respective capacities, this Court sees no
reason to depart from the findings of the lower courts finding Maitim solidarily liable with Santos.

Finally, all monetary awards shall earn interest at the rate of six percent (6%) per annum from date of finality of this
Decision until fully paid.
WHEREFORE, the instant petition is DENIED. The assailed Decision dated June 30, 2014, and Resolution dated May 19,
2015 of the Court of Appeals, in CA-G.R. CV No. 100354 are AFFIRMED with MODIFICATION in that all monetary awards
shall earn interest at the rate of six percent (6%) per annum from date of finality of this Decision until fully paid.

Zalameda, Rosario, and Marquez, JJ., concur.

Perlas-Bernabe,* J., On official leave.

Title

Mercury Drug Corporation vs. Baking

Case

G.R. No. 156037

Decision Date

May 25, 2007

Mercury Drug Corporation is held liable for damages after selling the wrong medicine to a customer, causing a vehicular
accident, leading to a ruling in favor of the customer and an award of reduced moral and exemplary damages.

wrong medicine

vehicular accident

moral damages Show more tags (17)

551 Phil. 182; 104 OG No. 13, 2261 (March 31, 2008)

FIRST DIVISION

[ G.R. No. 156037, May 25, 2007 ]

MERCURY DRUG CORPORATION, PETITIONER, VS. SEBASTIAN M. BAKING, RESPONDENT.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari[1] assailing the Decision[2] dated May 30, 2002 and
Resolution dated November 5, 2002 of the Court of Appeals in CA-G.R. CV No. 57435, entitled "Sebastian M. Baking,
plaintiff-appellee, versus Mercury Drug Co. Inc., defendant-appellant."

The facts are:

On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for a medical check-up. On
the following day, after undergoing an ECG, blood, and hematology examinations and urinalysis, Dr. Sy found that
respondent's blood sugar and triglyceride were above normal levels. Dr. Sy then gave respondent two medical
prescriptions - Diamicron for his blood sugar and Benalize tablets for his triglyceride.

Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy the prescribed medicines.
However, the saleslady misread the prescription for Diamicron as a prescription for Dormicum. Thus, what was sold to
respondent was Dormicum, a potent sleeping tablet.
Unaware that what was given to him was the wrong medicine, respondent took one pill of Dormicum on three
consecutive days - November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and November 8 at 7:30 a.m.

On November 8 or on the third day he took the medicine, respondent figured in a vehicular accident. The car he was
driving collided with the car of one Josie Peralta. Respondent fell asleep while driving. He could not remember anything
about the collision nor felt its impact.

Suspecting that the tablet he took may have a bearing on his physical and mental state at the time of the collision,
respondent returned to Dr. Sy's clinic. Upon being shown the medicine, Dr. Sy was shocked to find that what was sold to
respondent was Dormicum, instead of the prescribed Diamicron.

Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of Quezon City a complaint for
damages against petitioner, docketed as Civil Case No. Q-94-20193.

After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent, thus:

WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders judgment in favor of the
plaintiff and against the defendant ordering the latter to pay mitigated damages as follows:

P250,000.00 as moral damages;

P20,000.00 as attorney's fees and litigation expenses;

plus A12% of the cost of the suit.

SO ORDERED.

On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner filed a motion for
reconsideration but it was denied in a Resolution dated November 5, 2002.

Hence, this petition.

Petitioner contends that the Decision of the Court of Appeals is not in accord with law or prevailing jurisprudence.

Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be denied.

The issues for our resolution are:

Whether petitioner was negligent, and if so, whether such negligence was the proximate cause of respondent's accident;
and

Whether the award of moral damages, attorney's fees, litigation expenses, and cost of the suit is justified.

Article 2176 of the New Civil Code provides:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
To sustain a claim based on the above provision, the following requisites must concur: (a) damage suffered by the
plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and effect between the fault or negligence
of the defendant and the damage incurred by the plaintiff.[3]

There is no dispute that respondent suffered damages.

It is generally recognized that the drugstore business is imbued with public interest. The health and safety of the people
will be put into jeopardy if drugstore employees will not exercise the highest degree of care and diligence in selling
medicines. Inasmuch as the matter of negligence is a question of fact, we defer to the findings of the trial court affirmed
by the Court of Appeals.

Obviously, petitioner's employee was grossly negligent in selling to respondent Dormicum, instead of the prescribed
Diamicron. Considering that a fatal mistake could be a matter of life and death for a buying patient, the said employee
should have been very cautious in dispensing medicines. She should have verified whether the medicine she gave
respondent was indeed the one prescribed by his physician. The care required must be commensurate with the danger
involved, and the skill employed must correspond with the superior knowledge of the business which the law demands.
[4]

Petitioner contends that the proximate cause of the accident was respondent's negligence in driving his car.

We disagree.

Proximate cause is defined as any cause that produces injury in a natural and continuous sequence, unbroken by any
efficient intervening cause, such that the result would not have occurred otherwise. Proximate cause is determined from
the facts of each case, upon a combined consideration of logic, common sense, policy, and precedent.[5]

Here, the vehicular accident could not have occurred had petitioner's employee been careful in reading Dr. Sy's
prescription. Without the potent effects of Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep
while driving his car, resulting in a collision.

Complementing Article 2176 is Article 2180 of the same Code which states:

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

xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.

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

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

It is thus clear that the employer of a negligent employee is liable for the damages caused by the latter. When an injury
is caused by the negligence of an employee, there instantly arises a presumption of the law that there has been
negligence on the part of the employer, either in the selection of his employee or in the supervision over him, after such
selection. The presumption, however, may be rebutted by a clear showing on the part of the employer that he has
exercised the care and diligence of a good father of a family in the selection and supervision of his employee.[6] Here,
petitioner's failure to prove that it exercised the due diligence of a good father of a family in the selection and
supervision of its employee will make it solidarily liable for damages caused by the latter.

As regards the award of moral damages, we hold the same to be in order. Moral damages may be awarded whenever
the defendant's wrongful act or omission is the proximate cause of the plaintiff's physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury in
the cases specified or analogous to those provided in Article 2219 of the Civil Code.[7]

Respondent has adequately established the factual basis for the award of moral damages when he testified that he
suffered mental anguish and anxiety as a result of the accident caused by the negligence of petitioner's employee.

There is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral damages, since each
case must be governed by its own peculiar facts. However, it must be commensurate to the loss or injury suffered.[8]
Taking into consideration the attending circumstances here, we are convinced that the amount awarded by the trial
court is exorbitant. Thus, we reduce the amount of moral damages from P250,000.00 to P50,000.00 only.

In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the grant of exemplary
damages by way of example or correction for the public good. As mentioned earlier, the drugstore business is affected
with public interest. Petitioner should have exerted utmost diligence in the selection and supervision of its employees.
On the part of the employee concerned, she should have been extremely cautious in dispensing pharmaceutical
products. Due to the sensitive nature of its business, petitioner must at all times maintain a high level of meticulousness.
Therefore, an award of exemplary damages in the amount of P25,000.00 is in order.

On the matter of attorney's fees and expenses of litigation, it is settled that the reasons or grounds for the award thereof
must be set forth in the decision of the court.[9] Since the trial court's decision did not give the basis of the award, the
same must be deleted. In Vibram Manufacturing Corporation v. Manila Electric Company,[10] we held:

Likewise, the award for attorney's fees and litigation expenses should be deleted. Well-enshrined is that "an award for
attorney's fees must be stated in the text of the courtA AA12s decision and not in the dispositive portion only"
(Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals, 246 SCRA 193 [1995] and Keng Hua Paper
Products, Inc. v. Court of Appeals, 286 SCRA 257 [1998]). This is also true with the litigation expenses where the body of
the decision discussed nothing for its basis.

WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of Appeals in CA-G.R. CV No.
57435 are AFFIRMED with modification in the sense that (a) the award of moral damages to respondent is reduced from
P250,000.00 to P50,000.00; (b) petitioner is likewise ordered to pay said respondent exemplary damages in the amount
of P25,000.00; and (c) the award of attorney's fees and litigation expenses is deleted.

Costs against petitioner.

SO ORDERED.

Puno, C.J., (Chairman), Azcuna, and Garcia, JJ., conur.

Corona, J., on leave.

Title

Viron Transportation Co., Inc. vs. Delos Santos

Case

G.R. No. 138296

Decision Date

Nov 22, 2000

A civil action for damages based on a vehicular accident between a passenger bus and a cargo truck is dismissed by the
lower court, but the Supreme Court upholds the finding of fault on the bus driver while modifying the award of
damages.

vehicular accident

lower court

bus driver Show more tags (17)

399 Phil. 243

THIRD DIVISION

[ G.R. No. 138296, November 22, 2000 ]

VIRON TRANSPORTATION CO., INC., PETITIONER, VS. ALBERTO DELOS SANTOS Y NATIVIDAD AND RUDY SAMIDAN,
RESPONDENTS.

DECISION

GONZAGA-REYES, J.:

This is a petition for review on certiorari which seeks to reverse and set aside: (1) the decision of the Court of Appeals[1]
promulgated on October 27, 1998 in CA-G.R. CV No. 54080 entitled "Viron Transportation Co., Inc. vs. Alberto delos
Santos and Rudy Samidan" affirming the decision of the Regional Trial Court of Manila[2] in Civil Case No. 93-67283 and
(2) the resolution of the Court of Appeals promulgated on April 14, 1999 denying the motion for reconsideration.

The said civil case is an action to recover damages based on quasi-delict filed as a result of a vehicular accident in the
afternoon of August 16, 1993 between a passenger bus owned by petitioner Viron Transportation Co., Inc. and a
Forward Cargo Truck owned by private respondent Rudy Samidan.

The conflicting versions of the accident were summarized by the trial court and adopted by the Court of Appeals in the
assailed decision. The version of petitioner is as follows:

"Plaintiff, a public utility transportation company, is the registered owner of Viron Transit Bus No. 1080, with Plate No.
TB-AVC-332; while the defendant Rudy Samidan is the registered owner of the Forward Cargo Truck with Plate No. TDY-
524 which, at the time of the vehicular accident in question, was driven and operated by the defendant Alberto delos
Santos y Natividad. On August 16, 1993, at around 2:30 in the afternoon, the aforesaid bus was driven by plaintiff's
regular driver Wilfredo Villanueva along MacArthur Highway within the vicinity of Barangay Parsolingan, Gerona, Tarlac
coming from the North en route to its destination in Manila. It was following the Forward Cargo Truck proceeding from
the same direction then being driven, as aforesaid, by the defendant Alberto delos Santos. The cargo truck swerved to
the right shoulder of the road and, while about to be overtaken by the bus, again swerved to the left to occupy its lane.
It was at that instance that the collision occurred, the left front side of the truck collided with the right front side of the
bus causing the two vehicles substantial damages."[3]

On the other hand, the version of private respondents is as follows:

"Defendant Alberto delos Santos was the driver of defendant Rudy Samidan of the latter's vehicle, a Forward Cargo
Truck with Plate No. TDY-524, on that fateful day in question. At about 12:30 in the afternoon of August 16, 1993, he
was driving said truck along the National Highway within the vicinity of Barangay Parsolingan, Gerona, Tarlac. The Viron
bus with Body No. 1080 and Plate No., TB-AVC-332, driven by Wilfredo Villanueva y Gaudia, tried to overtake his truck,
and he swerved to the right shoulder of the highway, but as soon as he occupied the right lane of the road, the cargo
truck which he was driving was hit by the Viron bus on its left front side, as the bus swerved to his lane to avoid an
incoming bus on its opposite direction. With the driver of another truck dealing likewise in vegetables, Dulnuan, the two
of them and the driver of the Viron bus proceeded to report the incident to the Gerona Police Station. A Vehicular Traffic
Report was prepared by the police (See Exhibit "D"), with a Sketch of the relative positions of the circumstances leading
to the vehicular collision. x x x."[4]

After trial, the lower court dismissed petitioner's complaint and sustained the private respondents' counterclaim for
damages. It ordered the petitioner to pay the following amounts:

P19,500.00, with interest thereon at 6% per annum from the date of complaint, as actual damages, until the same shall
have been fully paid and satisfied;

P10,000.00 as additional compensatory damages for transportation and accommodations during the trial of this case;

P10,000.00 for and as attorney's fees; and

Costs of suit."[5]

Not satisfied therewith, petitioner appealed to the Court of Appeals which as mentioned at the outset affirmed in toto
the decision of the lower court. Its motion for reconsideration having been denied, petitioner came to us claiming that
the Court of Appeals gravely erred

a) ... IN FINDING THAT THE ACCIDENT WAS DUE TO THE FAULT OF THE PETITIONER'S DRIVER;

b) ... IN FINDING THE PETITIONER LIABLE FOR DAMAGES WHEN THE COUNTERCLAIM FAILED TO STATE A CAUSE OF
ACTION FOR THERE IS NO AVERMENT WHATSOEVER THEREIN THAT SAID PETITIONER FAILED TO EXERCISE DUE
DILIGENCE OF A GOOD FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF ITS DRIVERS OR EMPLOYEES;

c) ... IN AWARDING COMPENSATORY OR ACTUAL DAMAGES AS WELL AS, TRAVELLING EXPENSES AND ATTORNEY'S FEES
WHEN THE SAME WERE NOT SUBSTANTIATED OR BUTTRESSED BY THE EVIDENCE ON RECORD;

d) ... IN AFFIRMING THE DECISION OF THE COURT A QUO DENYING PETITIONER'S MOTION TO PRESENT REBUTTAL
EVIDENCE.[6]

We resolved to give due course to the petition and required the parties to submit their respective memoranda after due
consideration of the allegations, issues and arguments adduced in the petition, the comment thereon by the private
respondents, and the reply to the comment filed by the petitioner. The petitioner and private respondents filed their
respective memoranda in due time.

The first imputed error is without merit. Petitioner endeavors to have this Court review the factual findings of the trial
court as sustained by the Court of Appeals finding the driver of the Viron passenger bus at fault as the collision resulted
from the latter's failed attempt to overtake the cargo truck.

We are unable to sustain petitioner's contention. The rule is settled that the findings of the trial court especially when
affirmed by the Court of Appeals, are conclusive on this Court when supported by the evidence on record.[7] The
Supreme Court will not assess and evaluate all over again the evidence, testimonial and documentary adduced by the
parties to an appeal particularly where, such as here, the findings of both the trial court and the appellate court on the
matter coincide.[8] Indeed, petitioner has failed to show compelling grounds for a reversal of the following findings and
conclusions of the trial court and the Court of Appeals:

"There is no doubt whatsoever, in the mind of the Court, on the basis of the documentary evidence (Exhibits "D", "4"
and "5") and the testimonies of the witnesses, that the vehicular collision was due to the negligence of plaintiff's regular
driver, Wilfredo Villanueva y Gaudia, at that time. The cargo truck was on its proper lane at the time of the collision. In
fact, the cargo truck even swerved to the right shoulder of the road to give much room for the Viron bus to pass.
Notwithstanding the condition of the road and the in-coming Dagupan Bus from the opposite direction, the Viron bus
nonetheless proceeded to overtake the cargo truck, bringing about the collision. The evidence is uniform as to that fact.
Indeed, no witnesses for the plaintiff ever contradicted the obtrusive fact that it was while in the process of overtaking
the cargo truck that the Viron bus collided with the former vehicle.

It is here well to recall that the driver of an overtaking vehicle must see to it that the conditions are such that an attempt
to pass is reasonably safe and prudent, and in passing must exercise reasonable care. In the absence of clear evidence of
negligence on the part of the operator of the overtaken vehicle, the courts are inclined to put the blame for an accident
occurring while a passage is being attempted on the driver of the overtaking vehicle (People vs. Bolason, (C.A.) 53 Off.
Gaz. 4158). As already intimated elsewhere in this judgment, no evidence was presented by the plaintiff to even intimate
at the negligence of the driver of the cargo truck."[9]

It is plain to see that the fault or negligence was attributable to the driver of the Viron passenger bus. Petitioner
proceeds to attack, albeit feebly, the credibility of the two witnesses presented by private respondents, namely, Alberto
delos Santos himself, who was then the driver of the Forward Cargo Truck and a certain Manuel Dulnuan, who was then
travelling along the same highway coming from the opposite direction when the accident occurred. According to
petitioner, the two witnesses contradicted each other when "witness Dulnuan testified that the petitioner's passenger
bus while attempting to overtake the respondents' truck, noticed the Dagupan passenger bus coming from the opposite
direction and to avoid hitting said passenger bus, the Viron Transit passenger bus swerved to the right, hitting in the
process the front left side portion of the respondents' truck;" while, "witness Alberto delos Santos testified that prior to
the accident, he swerved his truck to the right shoulder of the road (western lane) and when he attempted to return to
his lane, the accident happened." Contrary to petitioner's assertion, the testimonies of the two witnesses complement,
if not corroborate each other. The Viron passenger bus collided with the cargo truck in a vain attempt to overtake the
latter. At the sight of an oncoming bus in the opposite direction, the Viron passenger bus swerved to the right lane
which was then occupied by the cargo truck resulting in the collision of the two vehicles. In reference to Alberto delos
Santos' testimony, the lower court pointed out that the said driver of the cargo truck was on its proper lane at the time
of impact, and even swerved earlier toward the right shoulder of the road just to give room to the bus. In any event, it is
doctrinally entrenched that the assessment of the trial judge as to the issue of credibility binds the appellate court
because he is in a better position to decide the issue, having heard the witnesses and observed their deportment and
manner of testifying during the trial, except when the trial court has plainly overlooked certain facts of substance and
value, that, if considered, might affect the result of the case, or where the assessment is clearly shown to be arbitrary.
[10] Petitioner has not shown this case to fall under the exception.

The second imputed error is without merit either. Petitioner contends that private respondents' counterclaim failed to
state a cause of action for there is no averment therein that petitioner failed to exercise the diligence of a good father of
a family in the selection and supervision of its drivers or employees. It is to be noted that petitioner Viron Transportation
Co., Inc., as the registered owner of the bus involved in the subject vehicular accident originally brought the action for
damages against private respondents. Private respondents as defendants in the court a quo denied any liability and filed
instead a counterclaim for damages claiming that it was the driver of the bus who was at fault in the operation of the
bus. We find that the counterclaim of private respondents alleges the ultimate facts constituting their cause of action. It
is not necessary to state that petitioner was negligent in the supervision or selection of its employees, as its negligence is
presumed by operation of law. The liability of the employer was explained in a case thus:

"As employers of the bus driver, the petitioner is, under Article 2180 of the Civil Code, directly and primary liable for the
resulting damages. The presumption that they are negligent flows from the negligence of their employee. That
presumption, however, is only juris tantum, not juris et de jure. Their only possible defense is that they exercised all the
diligence of a good father of a family to prevent the damage. Article 2180 reads as follows:

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

xxx

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

xxx

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

The diligence of a good father referred to means the diligence in the selection and supervision of employees.[11]

In fine, when the employee causes damage due to his own negligence while performing his own duties, there arises the
juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of the diligence of a
good father of a family.[12] Petitioner, through its witnesses, namely, Danilo Azardon, a shop supervisor and Fernando
Mallare, an administrative officer, failed to rebut such legal presumption of negligence in the selection and supervision
of employees, thus, petitioner as the employer is responsible for damages, the basis of the liability being the relationship
of pater familias or on the employer's own negligence.[13] Hence, with the allegations and subsequent proof of
negligence against the bus driver of petitioner, the lower courts correctly adjudged petitioner liable for damages.

Be that as it may, it is too late in the day for petitioner to raise failure to state a cause of action as an issue. Rule 9,
Section 2 of the Rules of Court provides as a general rule that "defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived." An exception is made where there is a "failure to state a cause of action
which may be alleged in a later pleading, if one is permitted, or by motion for judgment on the pleadings, or at the trial
on the merits; x x x." Applying said rule, petitioner is now barred from raising said issue, which it did only for the first
time in the Court of Appeals and subsequently before this Court. Petitioner did not raise the said issue in a later
pleading, i.e. answer to the counterclaim, or at any time during the trial.

The fourth imputed error is likewise without merit. The Court of Appeals committed no error in declaring the case
submitted for decision even without the testimony of petitioner's rebuttal witness. Petitioner has only itself to blame for
its failure to present its rebuttal witness as the Court of Appeals explained thus:

"Appellant's claim that the court a quo erred in not allowing it to present rebuttal evidence, thus depriving it of its day in
court is without merit. A review of the records would show that appellant was given ample opportunity to present its
rebuttal evidence but failed to so do. It was appellant itself which sought the postponements and cancellations of the
hearings, after its motion for the presentation of rebuttal evidence had been granted."[14]

There is, however, merit in the third imputed error. We find that with respect to the award of damages, an oversight
was committed by the Court of Appeals. The Court of Appeals justified the award of actual damages as follows:

"In the case at bench, the award of actual damages cannot be said to be devoid of factual and legal basis. Appellees
were able to prove that damage had been suffered by the cargo truck, the amount of which is shown in Exhibit 3, the
estimate of repair expenses. Moreover, the picture of the damaged cargo truck (Exh. 1), more or less, supports the
amount of damage reflected in the repair estimate (Exh. 3).

As to the award of attorney's fees, the Court finds the same just and reasonable. The award of attorney's fees is proper
where the acts and omissions of a party have compelled the other party to litigate or incur expenses to protect his rights
and such may be recovered when deemed by the court as just and equitable, as in the case at bar. x x x."[15]

Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable
degree of certainty. Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and
amount of damages.[16] To justify an award of actual damages, there must be competent proof of the actual amount of
loss, credence can be given only to claims which are duly supported by receipts.[17] Considering that the actual
damages suffered by private respondents were based only on a job estimate and a photo showing the damage to the
truck, there is absence of competent proof on the specific amounts of actual damages suffered. Neither were the
transportation and accommodation expenses during the trial supported by competent proof, the lower court having
relied merely on the unsubstantiated allegations of private respondents.

Nonetheless, in the absence of competent proof on the actual damages suffered, a party is entitled to temperate
damages. Article 2224 of the Civil Code provides that:

"Art. 2224. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may
be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature
of the case, be proved with certainty."

There is no doubt that the damage sustained by private respondents' cargo truck was due to the fault or negligence of
petitioner's bus driver. The Court deems the amount of P10,000.00 to be reasonable given the circumstances.[18]

With respect to the award of attorney's fees, there is likewise neither factual nor legal basis therefor. This case does not
fall under any of the instances found in Article 2208 of the Civil Code[19] for the proper award of attorney's fees. The
futility of petitioner's resort to judicial action without more could not be taken against it. It cannot be said that
petitioner filed a clearly unfounded civil action against the private respondents. A resort to judicial processes and a
subsequent defeat therein are not per se evidence of a clearly unfounded suit, this is in line with the policy that no
penalty should be placed on the right to litigate.[20]

WHEREFORE, the challenged decision of the Court of Appeals promulgated on October 27, 1998 in CA-G.R. CV No. 54080
affirming that of the Regional Trial Court of Manila, Branch 55, is hereby modified insofar as it awarded actual damages
to private respondents Alberto delos Santos y Natividad and Rudy Samidan in the amount of P19,500.00 and an
additional P10,000.00 as expenses for transportation and accommodation during the trial for lack of evidentiary bases
therefor. Considering the fact, however, that the cargo truck sustained damages due to the negligence or fault of
petitioner, the award of P10,000.00 in favor of private respondents as and for temperate damages is in order. The award
of P10,000.00 as attorney's fees is DELETED for reasons above-stated.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 162467, May 08, 2009 ]

MINDANAO TERMINAL AND BROKERAGE SERVICE, INC. PETITIONER, VS. PHOENIX ASSURANCE COMPANY OF NEW
YORK/ MCGEE & CO., INC., RESPONDENT.

DECISION

TINGA, J.:

Before us is a petition for review on certiorari[1] under Rule 45 of the 1997 Rules of Civil Procedure of the 29 October
2003[2] Decision of the Court of Appeals and the 26 February 2004 Resolution[3] of the same court denying petitioner's
motion for reconsideration.

The facts of the case are not disputed.

Del Monte Philippines, Inc. (Del Monte) contracted petitioner Mindanao Terminal and Brokerage Service, Inc. (Mindanao
Terminal), a stevedoring company, to load and stow a shipment of 146,288 cartons of fresh green Philippine bananas
and 15,202 cartons of fresh pineapples belonging to Del Monte Fresh Produce International, Inc. (Del Monte Produce)
into the cargo hold of the vessel M/V Mistrau. The vessel was docked at the port of Davao City and the goods were to be
transported by it to the port of Inchon, Korea in favor of consignee Taegu Industries, Inc. Del Monte Produce insured the
shipment under an "open cargo policy" with private respondent Phoenix Assurance Company of New York (Phoenix), a
non-life insurance company, and private respondent McGee & Co. Inc. (McGee), the underwriting manager/agent of
Phoenix.[4]

Mindanao Terminal loaded and stowed the cargoes aboard the M/V Mistrau. The vessel set sail from the port of Davao
City and arrived at the port of Inchon, Korea. It was then discovered upon discharge that some of the cargo was in bad
condition. The Marine Cargo Damage Surveyor of Incok Loss and Average Adjuster of Korea, through its representative
Byeong Yong Ahn (Byeong), surveyed the extent of the damage of the shipment. In a survey report, it was stated that
16,069 cartons of the banana shipment and 2,185 cartons of the pineapple shipment were so damaged that they no
longer had commercial value.[5]

Del Monte Produce filed a claim under the open cargo policy for the damages to its shipment. McGee's Marine Claims
Insurance Adjuster evaluated the claim and recommended that payment in the amount of $210,266.43 be made. A
check for the recommended amount was sent to Del Monte Produce; the latter then issued a subrogation receipt[6] to
Phoenix and McGee.

Phoenix and McGee instituted an action for damages[7] against Mindanao Terminal in the Regional Trial Court (RTC) of
Davao City, Branch 12. After trial, the RTC,[8] in a decision dated 20 October 1999, held that the only participation of
Mindanao Terminal was to load the cargoes on board the M/V Mistrau under the direction and supervision of the ship's
officers, who would not have accepted the cargoes on board the vessel and signed the foreman's report unless they
were properly arranged and tightly secured to withstand voyage across the open seas. Accordingly, Mindanao Terminal
cannot be held liable for whatever happened to the cargoes after it had loaded and stowed them. Moreover, citing the
survey report, it was found by the RTC that the cargoes were damaged on account of a typhoon which M/V Mistrau had
encountered during the voyage. It was further held that Phoenix and McGee had no cause of action against Mindanao
Terminal because the latter, whose services were contracted by Del Monte, a distinct corporation from Del Monte
Produce, had no contract with the assured Del Monte Produce. The RTC dismissed the complaint and awarded the
counterclaim of Mindanao Terminal in the amount of P83,945.80 as actual damages and P100,000.00 as attorney's fees.
[9] The actual damages were awarded as reimbursement for the expenses incurred by Mindanao Terminal's lawyer in
attending the hearings in the case wherein he had to travel all the way from Metro Manila to Davao City.
Phoenix and McGee appealed to the Court of Appeals. The appellate court reversed and set aside[10] the decision of the
RTC in its 29 October 2003 decision. The same court ordered Mindanao Terminal to pay Phoenix and McGee "the total
amount of $210,265.45 plus legal interest from the filing of the complaint until fully paid and attorney's fees of 20% of
the claim."[11] It sustained Phoenix's and McGee's argument that the damage in the cargoes was the result of improper
stowage by Mindanao Terminal. It imposed on Mindanao Terminal, as the stevedore of the cargo, the duty to exercise
extraordinary diligence in loading and stowing the cargoes. It further held that even with the absence of a contractual
relationship between Mindanao Terminal and Del Monte Produce, the cause of action of Phoenix and McGee could be
based on quasi-delict under Article 2176 of the Civil Code.[12]

Mindanao Terminal filed a motion for reconsideration,[13] which the Court of Appeals denied in its 26 February
2004[14] resolution. Hence, the present petition for review.

Mindanao Terminal raises two issues in the case at bar, namely: whether it was careless and negligent in the loading and
stowage of the cargoes onboard M/V Mistrau making it liable for damages; and, whether Phoenix and McGee has a
cause of action against Mindanao Terminal under Article 2176 of the Civil Code on quasi-delict. To resolve the petition,
three questions have to be answered: first, whether Phoenix and McGee have a cause of action against Mindanao
Terminal; second, whether Mindanao Terminal, as a stevedoring company, is under obligation to observe the same
extraordinary degree of diligence in the conduct of its business as required by law for common carriers[15] and
warehousemen;[16] and third, whether Mindanao Terminal observed the degree of diligence required by law of a
stevedoring company.

We agree with the Court of Appeals that the complaint filed by Phoenix and McGee against Mindanao Terminal, from
which the present case has arisen, states a cause of action. The present action is based on quasi-delict, arising from the
negligent and careless loading and stowing of the cargoes belonging to Del Monte Produce. Even assuming that both
Phoenix and McGee have only been subrogated in the rights of Del Monte Produce, who is not a party to the contract of
service between Mindanao Terminal and Del Monte, still the insurance carriers may have a cause of action in light of the
Court's consistent ruling that the act that breaks the contract may be also a tort.[17] In fine, a liability for tort may arise
even under a contract, where tort is that which breaches the contract[18]. In the present case, Phoenix and McGee are
not suing for damages for injuries arising from the breach of the contract of service but from the alleged negligent
manner by which Mindanao Terminal handled the cargoes belonging to Del Monte Produce. Despite the absence of
contractual relationship between Del Monte Produce and Mindanao Terminal, the allegation of negligence on the part
of the defendant should be sufficient to establish a cause of action arising from quasi-delict.[19]

The resolution of the two remaining issues is determinative of the ultimate result of this case.

Article 1173 of the Civil Code is very clear that if the law or contract does not state the degree of diligence which is to be
observed in the performance of an obligation then that which is expected of a good father of a family or ordinary
diligence shall be required. Mindanao Terminal, a stevedoring company which was charged with the loading and stowing
the cargoes of Del Monte Produce aboard M/V Mistrau, had acted merely as a labor provider in the case at bar. There is
no specific provision of law that imposes a higher degree of diligence than ordinary diligence for a stevedoring company
or one who is charged only with the loading and stowing of cargoes. It was neither alleged nor proven by Phoenix and
McGee that Mindanao Terminal was bound by contractual stipulation to observe a higher degree of diligence than that
required of a good father of a family. We therefore conclude that following Article 1173, Mindanao Terminal was
required to observe ordinary diligence only in loading and stowing the cargoes of Del Monte Produce aboard M/V
Mistrau.

The Court of Appeals erred when it cited the case of Summa Insurance Corporation v. CA and Port Service Inc.[20] in
imposing a higher degree of diligence,[21] on Mindanao Terminal in loading and stowing the cargoes. The case of
Summa Insurance Corporation v. CA, which involved the issue of whether an arrastre operator is legally liable for the
loss of a shipment in its custody and the extent of its liability, is inapplicable to the factual circumstances of the case at
bar. Therein, a vessel owned by the National Galleon Shipping Corporation (NGSC) arrived at Pier 3, South Harbor,
Manila, carrying a shipment consigned to the order of Caterpillar Far East Ltd. with Semirara Coal Corporation (Semirara)
as "notify party." The shipment, including a bundle of PC 8 U blades, was discharged from the vessel to the custody of
the private respondent, the exclusive arrastre operator at the South Harbor. Accordingly, three good-order cargo
receipts were issued by NGSC, duly signed by the ship's checker and a representative of private respondent. When
Semirara inspected the shipment at house, it discovered that the bundle of PC8U blades was missing. From those facts,
the Court observed:

x x x The relationship therefore between the consignee and the arrastre operator must be examined. This relationship is
much akin to that existing between the consignee or owner of shipped goods and the common carrier, or that between
a depositor and a warehouseman[[22]]. In the performance of its obligations, an arrastre operator should observe the
same degree of diligence as that required of a common carrier and a warehouseman as enunciated under Article 1733 of
the Civil Code and Section 3(b) of the Warehouse Receipts Law, respectively. Being the custodian of the goods
discharged from a vessel, an arrastre operator's duty is to take good care of the goods and to turn them over to the
party entitled to their possession. (Emphasis supplied)[23]There is a distinction between an arrastre and a stevedore.
[24] Arrastre, a Spanish word which refers to hauling of cargo, comprehends the handling of cargo on the wharf or
between the establishment of the consignee or shipper and the ship's tackle. The responsibility of the arrastre operator
lasts until the delivery of the cargo to the consignee. The service is usually performed by longshoremen. On the other
hand, stevedoring refers to the handling of the cargo in the holds of the vessel or between the ship's tackle and the
holds of the vessel. The responsibility of the stevedore ends upon the loading and stowing of the cargo in the vessel.

It is not disputed that Mindanao Terminal was performing purely stevedoring function while the private respondent in
the Summa case was performing arrastre function. In the present case, Mindanao Terminal, as a stevedore, was only
charged with the loading and stowing of the cargoes from the pier to the ship's cargo hold; it was never the custodian of
the shipment of Del Monte Produce. A stevedore is not a common carrier for it does not transport goods or passengers;
it is not akin to a warehouseman for it does not store goods for profit. The loading and stowing of cargoes would not
have a far reaching public ramification as that of a common carrier and a warehouseman; the public is adequately
protected by our laws on contract and on quasi-delict. The public policy considerations in legally imposing upon a
common carrier or a warehouseman a higher degree of diligence is not present in a stevedoring outfit which mainly
provides labor in loading and stowing of cargoes for its clients.

In the third issue, Phoenix and McGee failed to prove by preponderance of evidence[25] that Mindanao Terminal had
acted negligently. Where the evidence on an issue of fact is in equipoise or there is any doubt on which side the
evidence preponderates the party having the burden of proof fails upon that issue. That is to say, if the evidence
touching a disputed fact is equally balanced, or if it does not produce a just, rational belief of its existence, or if it leaves
the mind in a state of perplexity, the party holding the affirmative as to such fact must fail.[26]

We adopt the findings[27] of the RTC,[28] which are not disputed by Phoenix and McGee. The Court of Appeals did not
make any new findings of fact when it reversed the decision of the trial court. The only participation of Mindanao
Terminal was to load the cargoes on board M/V Mistrau.[29] It was not disputed by Phoenix and McGee that the
materials, such as ropes, pallets, and cardboards, used in lashing and rigging the cargoes were all provided by M/V
Mistrau and these materials meets industry standard.[30]

It was further established that Mindanao Terminal loaded and stowed the cargoes of Del Monte Produce aboard the
M/V Mistrau in accordance with the stowage plan, a guide for the area assignments of the goods in the vessel's hold,
prepared by Del Monte Produce and the officers of M/V Mistrau.[31] The loading and stowing was done under the
direction and supervision of the ship officers. The vessel's officer would order the closing of the hatches only if the
loading was done correctly after a final inspection.[32] The said ship officers would not have accepted the cargoes on
board the vessel if they were not properly arranged and tightly secured to withstand the voyage in open seas. They
would order the stevedore to rectify any error in its loading and stowing. A foreman's report, as proof of work done on
board the vessel, was prepared by the checkers of Mindanao Terminal and concurred in by the Chief Officer of M/V
Mistrau after they were satisfied that the cargoes were properly loaded.[33]

Phoenix and McGee relied heavily on the deposition of Byeong Yong Ahn[34] and on the survey report[35] of the
damage to the cargoes. Byeong, whose testimony was refreshed by the survey report,[36] found that the cause of the
damage was improper stowage[37] due to the manner the cargoes were arranged such that there were no spaces
between cartons, the use of cardboards as support system, and the use of small rope to tie the cartons together but not
by the negligent conduct of Mindanao Terminal in loading and stowing the cargoes. As admitted by Phoenix and McGee
in their Comment[38] before us, the latter is merely a stevedoring company which was tasked by Del Monte to load and
stow the shipments of fresh banana and pineapple of Del Monte Produce aboard the M/V Mistrau. How and where it
should load and stow a shipment in a vessel is wholly dependent on the shipper and the officers of the vessel. In other
words, the work of the stevedore was under the supervision of the shipper and officers of the vessel. Even the materials
used for stowage, such as ropes, pallets, and cardboards, are provided for by the vessel. Even the survey report found
that it was because of the boisterous stormy weather due to the typhoon Seth, as encountered by M/V Mistrau during
its voyage, which caused the shipments in the cargo hold to collapse, shift and bruise in extensive extent.[39] Even the
deposition of Byeong was not supported by the conclusion in the survey report that:

CAUSE OF DAMAGE

xxx

From the above facts and our survey results, we are of the opinion that damage occurred aboard the carrying vessel
during sea transit, being caused by ship's heavy rolling and pitching under boisterous weather while proceeding from
1600 hrs on 7th October to 0700 hrs on 12th October, 1994 as described in the sea protest.[40]As it is clear that
Mindanao Terminal had duly exercised the required degree of diligence in loading and stowing the cargoes, which is the
ordinary diligence of a good father of a family, the grant of the petition is in order.

However, the Court finds no basis for the award of attorney's fees in favor of petitioner. None of the circumstances
enumerated in Article 2208 of the Civil Code exists. The present case is clearly not an unfounded civil action against the
plaintiff as there is no showing that it was instituted for the mere purpose of vexation or injury. It is not sound public
policy to set a premium to the right to litigate where such right is exercised in good faith, even if erroneously.[41]
Likewise, the RTC erred in awarding P83,945.80 actual damages to Mindanao Terminal. Although actual expenses were
incurred by Mindanao Terminal in relation to the trial of this case in Davao City, the lawyer of Mindanao Terminal
incurred expenses for plane fare, hotel accommodations and food, as well as other miscellaneous expenses, as he
attended the trials coming all the way from Manila. But there is no showing that Phoenix and McGee made a false claim
against Mindanao Terminal resulting in the protracted trial of the case necessitating the incurrence of expenditures.[42]

WHEREFORE, the petition is GRANTED.The decision of the Court of Appeals in CA-G.R. CV No. 66121 is SET ASIDE and the
decision of the Regional Trial Court of Davao City, Branch 12 in Civil Case No. 25,311.97 is hereby REINSTATED MINUS
the awards of P100,000.00 as attorney's fees and P83,945.80 as actual damages.

WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED and SET ASIDE. Mindanao Terminal
Brokerage Services, Inc. is ordered to pay the plaintiff-appellants the total amount of $210,265.45 plus legal interest
from the filing of the complaint until fully paid and attorney's fees of 20% of the claim.

FIRST DIVISION
[ G.R. No. 234851, February 15, 2022 ]

PAOLO ANTHONY C. DE JESUS, PETITIONER, VS. DR. ROMEO F. UYLOAN, SUBSTITUTED BY HIS WIFE SALVACION UYLOAN,
ASIAN HOSPITAL AND MEDICAL CENTER AND DR. JOHN FRANCOIS OJEDA, RESPONDENTS.

DECISION

GESMUNDO, C.J.:

This resolves the petition for review on certiorari under Rule 45 of the Rules of Court to reverse and set aside the June
16, 2017 Decision[1] and October 11, 2017 Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 148192. The CA
reversed the May 6, 2016 and August 26, 2016 Joint Orders[3] of the Regional Trial Court of Las PiAas City, Branch 198
(RTC), in Civil Case No. LP-15-0091 denying motions to dismiss based on prescription, among other grounds.

Antecedents

On November 10, 2015, Paolo Anthony De Jesus (petitioner) filed a Complaint[4] "For Damages under Articles 1170[5]
and 1173[6] of the New Civil Code of the Philippines" against Dr. Romeo F. Uyloan (Dr. Uyloan), Dr. John Francois Ojeda
(Dr. Ojeda) and the Asian Hospital and Medical Center (AHMC).

On September 13, 2010, petitioner underwent an abdomino-pelvic sonogram. Dr. Uyloan diagnosed petitioner with
Cholelithiasis, a condition where there is a presence of stones in the gall bladder. Dr. Uyloan advised petitioner to
undergo laparoscopic cholecystectomy to remove the gallstones. Petitioner agreed to have the operation at the AHMC.
The operation was done on September 15, 2010, with Dr. Uyloan as attending physician and principal surgeon, and Dr.
Ojeda as assisting surgeon.[7]

Petitioner expected that the procedure would consist of just four small incisions around his umbilical area. Instead, Dr.
Uyloan and Dr. Ojeda performed an open cholecystectomy on petitioner without his approval or consent. During the
operation in which his abdomen was opened up, he lost a lot of blood, which necessitated blood transfusion. Dr. Uyloan
explained to him that the conversion of the operation from laparoscopic cholecystectomy to open cholecystectomy was
a result of a "punctured cystic artery."[8]

Petitioner further alleged that upon his discharge from the AHMC on September 19, 2010, the release forms stated that
he was in "good condition" and "recovered." However, he experienced vomiting and unbearable pain in his abdominal
area, and there was continuous bile leak in his colostomy bag even after three days from discharge. During his follow-up
checkup, Dr. Uyloan told him that the abdominal pains and bile leak were "part of it" and advised him to undergo
magnetic resonance cholangio-pancreatography.[9]

Dissatisfied with Dr. Uyloan's response, petitioner went to another hospital for a series of medical tests, the results of
which disclosed that instead of the cystic duct that joins the gall bladder to the common bile duct, it was the common
bile duct that was cut and clipped. The transection of the common bile duct caused bile to leak out and accumulate
around his liver, kidney spleen, the spaces between the colon and abdominal wall, as well as in his abdomen and lower
limbs. He had to undergo another operation on November 19, 2010, to rectify the first operation performed by Dr.
Uyloan and Dr. Ojeda.[10]

For the negligent acts of Dr. Uyloan and Dr. Ojeda, who allegedly breached their professional duties under their "medical
contract" with petitioner, the latter sought to hold the former liable for actual damages, moral and exemplary damages,
attorney's fees and litigation costs. Petitioner also sought to enforce solidary liability on the part of the AHMC in failing
to supervise its doctors under the doctrine of corporate responsibility.
Dr. Uyloan filed a Motion to Dismiss[11] anchored on grounds of prescription, forum shopping, and lack of jurisdiction.
Citing Art. 1146[12] of the Civil Code, he argued that petitioner's action based on quasi-delict is already barred, having
been filed beyond the four-year prescriptive period. As to forum shopping, he claimed that petitioner had filed criminal
and administrative cases against him way back in 2011, which was not mentioned in the certification on non-forum
shopping attached to the complaint.

The AHMC and Dr. Ojeda also moved to dismiss the case based, among others, on prescription contending that it was
readily apparent on the face of the complaint that petitioner's cause of action was premised on quasi-delict, arising from
the cutting and clipping of his bile duct due to an alleged "misidentification of an anatomy." Such action should have
been commenced within four years from September 15, 2010, the date he underwent the cholecystectomy at the
AHMC.[13]

The RTC Ruling

In its Joint Order dated May 6, 2016, the trial court denied both motions and held that the defense of prescription is
evidentiary in nature which may not be established by mere allegations in the pleadings and cannot be resolved in a
motion to dismiss. It also found that no forum shopping was committed by the petitioner considering that the criminal
and administrative cases, and the present civil action, involve different causes of action.

Petitioner, the AHMC, and Dr. Ojeda filed separate motions for reconsideration.

On August 26, 2016, the trial court issued a joint order denying the motions for reconsideration. It declared that the
complaint sufficiently alleges ultimate facts constituting petitioner's cause of action for damages. Accordingly, Dr.
Uyloan, the AHMC, and Dr. Ojeda were directed to file their answer.

Undaunted, Dr. Uyloan filed a petition for certiorari before the CA ascribing grave abuse of discretion on the part of the
RTC in issuing the aforesaid orders.

The CA Ruling

In its assailed decision, the CA reversed the RTC and ordered the dismissal of the complaint. It held that petitioner's
cause of action is indisputably based on medical negligence for which the applicable period of prescription is four years,
pursuant to Art. 1146 of the Civil Code. However, the complaint was filed only on November 10, 2015, which is more
than five years from the date the cause of action accrued, on September 15, 2010, when Dr. Uyloan and Dr. Ojeda
performed the botched operation on his gallbladder. Hence, the trial court gravely abused its discretion in not ruling
that petitioner's action was already time-barred.

Petitioner's motion for reconsideration was likewise denied.

ISSUE

The lone issue that begs to be resolved by the Court is whether or not the CA committed reversible error when it ruled
that the trial court gravely abused its discretion in denying the motions to dismiss.

Petitioner's Arguments
Petitioner argues that he is suing under the theory of breach of contract considering that the relationship between him
as patient, and Dr. Uyloan and Dr. Ojeda as physicians, was contractual in nature. He stresses that the patientA-physician
relationship is basically a contract involving the exchange of money for services with all the elements of a valid contract
(consent, determinate subject matter and consideration or price). Invoking the pronouncements in citing Sullivan v.
O'Connor[14] and Colvin v. Smith,[15] decided by American courts, petitioner states that medical malpractice actions
based on contract are not unheard of and permissible in this jurisdiction even if the cases that has reached this Court
were brought under the theory of quasi-delict. He submits that it is already settled doctrine that liability for quasi-delict
may co-exist in the presence of contractual relations.

As to the AHMC, petitioner contends that the recognition of the contractual relation between patient and hospital may
be inferred from the Court's decision in Professional Services, Inc. v. Court of Appeals[16] which recognized the fact that
the manner of operation of present-day hospitals has gone beyond mere furnishing of facilities for treatment; and that
persons availing of facilities expect that the hospital will attempt to cure them.

Petitioner asserts that in the absence of a special law or jurisprudence, the physician-patient and patient-hospital
relationships, just like other transactions involving exchange of money for services, are governed by the provisions of the
Civil Code. Thus, under Art. 1173, a contract can be breached through omission of the diligence required by the nature
of obligation, or of such diligence agreed upon by the parties in a contract.

Petitioner reiterates that a reading of his complaint plainly shows that his cause of action is based on contract. Hence,
the CA clearly erred in holding that the applicable prescriptive period is four years, and not six or ten years, in
accordance with Art. 1145 and 1144 of the Civil Code, respectively. Moreover, the issue of whether Dr. Uyloan, Dr.
Ojeda, and the AHMC breached their contract with him deserves a full blown trial, and is not appropriate for resolution
in a motion to dismiss.

Respondent's Arguments

Dr. Uyloan maintains that the Court has uniformly treated medical malpractice cases as a distinct type of tort, which has
four elements as with quasi-delicts in general: duty, breach, injury, and causation. While, concededly, there is no specific
law and categorical judicial pronouncement in this jurisdiction on medical malpractice suits being limited to Art. 2176 of
the Civil Code, he disagrees with petitioner's posture that his action is essentially based on contract. He points out that
the foreign jurisprudence cited by the petitioner even shows that petitioner's complaint states a cause of action in tort
and not in contract. In those cited cases, there was a special contract created between the physician and the patient,
which is not the same as any other physician-patient relationship. Such a special contract is based on an express
agreement between the physician and the patient to achieve a specific result. In this case, the allegations in petitioner's
complaint simply do not support his theory of a medical malpractice action based on contract.

The Court's Ruling

The petition has no merit.

The basic rule is that the Court's jurisdiction in a petition for review on certiorari under Rule 45 of the Rules of Court is
limited only to the review of pure questions of law.

In Crisostomo v. Garcia,[17] We ruled that prescription may either be a question of law or fact. Prescription is a question
of fact when the doubt or difference arises as to the truth or falsity of an allegation of fact; it is a question of law when
there is doubt or controversy as to what the law is on a given state of facts. The test of whether a question is one of law
or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate
court can determine the issue raised without reviewing or evaluating the evidence. Evidently, prescription is a question
of fact where there is a need to determine the veracity of factual matters such as the date when the period to bring the
action commenced to run.[18]

It is likewise settled that while trial courts have authority and discretion to dismiss an action on the ground of
prescription, it may only do so when the parties' pleadings or other facts on record show it to be indeed time-barred.
[19] Thus, in Macababbad, Jr. v. Masirag,[20] We held that "[a] ruling on prescription necessarily requires an analysis of
the plaintiff's cause of action based on the allegations of the complaint and the documents attached as its integral
parts." A motion to dismiss based on prescription hypothetically admits the allegations relevant and material to the
resolution of this issue, but not the other facts of the case.[21]

Here, the complaint prayed for damages resulting from the negligence of defendant doctors under the provisions of the
Civil Code on contracts and quasi-delicts. However, petitioner explicitly anchors his action on the implied contract for
medical treatment with Dr. Uyloan, Dr. Ojeda and the AHMC. It is the position of petitioner that an action alleging
medical negligence may be brought at the same time under the contract theory. Since he has also alleged the
contractual relation of physician and patient, petitioner argues that the prescriptive period of actions based on quasi-
delict under Art. 1146 of the Civil Code should not apply. Instead, Arts. 1144[22] and 1145[23] on prescription of
contracts should govern this case.

Considering that the dispute lies in the applicable provision on prescription of actions under the Civil Code, the issue of
prescription in this case is one of law. Resolution of this question therefore requires a determination of petitioner's
cause of action based on the allegations in the complaint and its annexes.

When a patient engages the services of a physician, a physician-patient relationship is generated. The type of lawsuit
which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a
victim (patient) has available to him or her to redress a wrong committed by a medical professional which has caused
bodily harm.[24] For lack of a specific law geared towards the type of negligence committed by members of the medical
profession in this jurisdiction, such claim for damages is almost always anchored on the alleged violation of Art. 2176 of
the Civil Code, which states that:

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

Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to
his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under
similar conditions, and in like surrounding circumstances.[25] In order to successfully pursue such a claim, a patient must
prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon
would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done,
and that the failure or action caused injury to the patient.[26] There are thus four elements involved in medical
negligence cases, namely: duty, breach, injury, and proximate causation.

In Lucas v. TuaAo,[27] this Court explains:

When a patient engages the services of a physician, a physicianA-patient relationship is generated. And in accepting a
case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by
physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the
treatment of the patient. Thus, in treating his patient, a physician is under a duty [to the former] to exercise that degree
of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases. Stated otherwise, the physician has the duty to use at least the same level
of care that any other reasonably competent physician would use to treat the condition under similar circumstances.[28]
(emphasis supplied)

Thus, where the complaint contains averments of the foregoing elements and the defendant doctor failed to observe
such degree of care which caused damage or harm to the plaintiff patient, the cause of action is one for medical
negligence under the law on torts rather than contract.

The petitioner states his cause of action in the complaint thus:

CAUSE OF ACTION AGAINST THE DOCTORS

...

29. A physician-patient relationship is created when the professional services are rendered to and accepted by another
for purposes of medical or surgical treatment. As such, it arises from the moment a physician gives advice to a patient.

30. The physician-patient relationship is basically a contractual relationship. Independently, liability may also arise ex
contractu because of the contract between the doctor and the patient.

31. In this case, a doctor-patient relationship was created when the Plaintiff sought the medical services of the
Defendants and the latter rendered medical services to the former.

31.1 Defendant Uyloan diagnosed Plaintiff with chlolethesis and advised him to undergo Laparoscopic Cholelystectomy.

31.2 Defendant Uyloan performed the First Operation of Plaintiff as the principal surgeon with Defendant Ojeda as the
assisting surgeon.

32. Undeniably, a medical contract existed between the Plaintiff and Defendants Uyloan and Ojeda.

...

35. The primary duty of the Defendant Doctors is to perform the First Operation with the same level of care that any
other competent physician would exercise under the circumstances to ensure the successful removal of the Plaintiff's
gallstones without detriment to his health.

36. Defendant Doctors also have the duty to secure the voluntary informed consent of a patient or his relatives
regarding the status of the operation, changes in the procedure and the mode of treatment effected because the patient
has the right to refuse the medical treatment.

...

38. Defendant Doctors also have the obligation to perform a post-operation procedure for the purpose of ensuring the
success of the medical operation and to immediately rectify any damage or prevent adverse side effects. Such duty is
even more required in this kind of operation because of the 'potential injury to the common bile duct, which connects
the cystic and common hepatic ducts to the duodenum.' An injured bile duct can leak and cause a painful and potentially
dangerous infection. Many cases of minor injury to the common bile duct can be managed non-surgically. Major injury
to the bile duct, however, is a very serious problem and may require corrective surgery.

39. The breach of these professional duties of skill and care, or their improper performance by a physician surgeon,
whereby the patient is injured in body or in health, constitutes actionable malpractice.

...

44. In this case, Defendant Doctors committed the following acts in the course of the First Operation, which are in
breach of their obligations to the Plaintiff:

43.1[sic] The negligent cutting and clipping of Plaintiff's common bile duct during the operation instead of the cystic
duct. Consequently, the unbearable and incessant pain suffered by the Plaintiff after his discharge is attributed to the
Defendant Doctors' negligent acts.

43.2[sic] The defendant failed to immediately explain to the Plaintiff the reason for the conversion of the procedure. He,
however, offered no explanation.

45.3[sic] Dr. Uyloan did not perform the required post operation procedure despite the concomitant risks in the
operation. Had the post operation procedure been done, they should have seen the damage done to the common bile
duct and could have remedied it immediately.

45.4[sic] Dr. Uyloan issued a "Clinical Summary Form" to the Plaintiff without ascertaining the true condition of his
health after the operation. Worse, it was marked as "Good" and "Recovered" even without the proper post operation
assessment.

45. Due to the breach of their obligations, the Plaintiff suffered abdominal pains and had continued bile leak. Thus, the
Plaintiff was constrained to undergo several other tests and procedures and incurred expenses amounting to TWO
MILLION SIX HUNDRED THOUSAND PESOS (PHP 2,600,000.00).

46. The negligent acts of the Defendant Doctors were the proximate cause of Plaintiff's injury. This was confirmed by the
tests which show that the transection of the common bile duct was a result of previous misidentification of an anatomy
and that there was an obstruction to the flow of bile coming from the liver that passes through the common hepatic into
the common bile duct.[29] (emphases supplied)

The above complaint indeed states a categorical declaration of the case being brought on the basis of a "medical
contract between the Plaintiffs and Defendants Uyloan and Ojeda" under the statement of cause of action against said
doctors.[30] However, the rest of the allegations and arguments unmistakably show that the cause of action is premised
upon the law and jurisprudence on damages in general and medical negligence under the Civil Code provisions on quasi-
delict. There is no mention at all of any express promise on the part of the defendant doctors to provide medical
treatment or achieve a specific result. The absence of an express agreement as basis for contractual liability is evident
from a plain invocation of an implied contract between the parties.

In Casumpang v. Cortejo,[31] We expounded on the establishment of a physician-patient relationship, as follows:

A physician-patient relationship is created when a patient engages the services of a physician, and the latter accepts or
agrees to provide care to the patient. The establishment of this relationship is consensual, and the acceptance by the
physician essential. The mere fact that an individual approaches a physician and seeks diagnosis, advice or treatment
does not create the duty of care unless the physician agrees.

The consent needed to create the relationship does not always need to be express. In the absence of an express
agreement, a physician-patient relationship may be implied from the physician's affirmative action to diagnose and/or
treat a patient, or in his participation in such diagnosis and/or treatment. The usual illustration would be the case of a
patient who goes to a hospital or a clinic, and is examined and treated by the doctor. In this case, we can infer, based on
the established and customary practice in the medical community that a patient-physician relationship exists.[32]
(citations omitted, emphases supplied)

The fact that the physician-patient relationship is consensual does not necessarily mean it is a contractual relation, in the
sense in which petitioner employs this term by equating it with any other transaction involving exchange of money for
services. Indeed, the medical profession is affected with public interest.[33] Once a physician-patient relationship is
established, the legal duty of care follows. The doctor accordingly becomes duty-bound to use at least the same
standard of care that a reasonably competent doctor would use to treat a medical condition under similar
circumstances.[34] Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under
professional standards. This determination is both factual and legal, and is specific to each individual case.[35] If the
patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is committed, entitling
the patient to damages.[36]

In the light of the foregoing, We hold that a mere reference to an implied contract between the physician and the
patient in general is insufficient for pleading a cause of action under the contract theory of professional malpractice. An
action for medical malpractice based on contract must allege an express promise to provide medical treatment or
achieve a specific result. The following discussion of established rules on medical malpractice culled from fairly recent
American jurisprudence highlights this point, viz.:

Absent an express contract, a physician does not impliedly warrant the success of his or her treatment but only that he
or she will adhere to the applicable standard of care. Thus, there is no cause of action for breach of implied contract or
implied warranty arising from an alleged failure to provide adequate medical treatment. This allegation clearly sounds in
tort, not in contract; therefore, the plaintiff's remedy is an action for malpractice, not breach of contract. A breach of
contract complaint fails to state a cause of action if there is no allegation of any express promise to cure or to achieve a
specific result. A physician's statements of opinion regarding the likely result of a medical procedure are insufficient to
impose contractual liability, even if they ultimately prove incorrect.[37] (emphases supplied)

Clearly, the cause of action in this case is one for medical malpractice or medical negligence premised on the "breach of
[the defendant doctors'] professional duties of skill and care, or their improper performance by a physician
surgeon,"[38] whereby the plaintiff suffered injury and damages. Petitioner's attempt to present a hybrid tort and
contract claim arising from the negligent acts of his physicians thus fails. Apparently, inclusion of the contract approach
to seek damages from the defendant physicians was an afterthought intended to revive a stale claim.

From the recitals of the complaint, petitioner's cause of action accrued on September 15, 2010, the day Dr. Uyloan and
Dr. Ojeda performed the operation on his gallbladder. Clearly, the filing of the case against said physicians on November
10, 2015, is already barred by prescription.

WHEREFORE, the petition is DENIED. The June 16, 2017 Decision and October 11, 2017 Resolution of the Court of
Appeals in CA-G.R. SP No. 148192 are hereby AFFIRMED.
THIRD DIVISION

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

NILO B. ROSIT, PETITIONER, VS. DAVAO DOCTORS HOSPITAL AND DR. ROLANDO G. GESTUVO, RESPONDENTS.

DECISION

VELASCO JR., J.:

The Case

This is a petition filed under Rule 45 of the Rules of Court assailing the Decision and Resolution dated January 22,
2013[1] and November 7, 2013,[2] respectively, of the Court of Appeals, Cagayan De Oro City (CA), in CA-G.R. CV No.
00911-MIN. The CA Decision reversed the Decision dated September 14, 2004[3] of the Regional Trial Court, Branch 33
in Davao City-(RTC) in Civil Case No. 27,354-99, a suit for damages thereat which Nilo B. Rosit (Rosit) commenced against
Dr. Rolando Gestuvo (Dr. Gestuvo).

Factual Antecedents

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

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

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

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

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

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

On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the cost of the operation and the expenses
he incurred in Cebu amounting to P140,000, as well as for the P50,000 that Rosit would have to spend for the removal of
the plate and screws that Dr. Pangan installed. Dr. Gestuvo refused to pay.[8]
Thus, Rosit filed a civil case for damages and attorney's fees with the RTC against Dr. Gestuvo and DDH, the suit
docketed as Civil Case No. 27,354-99.

The Ruling of the Regional Trial Court

The RTC freed DDH from liability on the ground that it exercised the proper diligence in the selection and supervision of
Dr. Gestuvo, but adjudged Dr. Gestuvo negligent and ruled thus:,

FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to have preponderantly established his cause of action in the
complaint against defendant Dr. Rolando G. Gestuvo only, judgment is hereby rendered for the plaintiff and against said
defendant, ordering the defendant DR. ROLANDO G. GESTUVO to pay unto plaintiff NILO B. ROSIT the following:

a)

the sum of ONE HUNDRED FORTY THOUSAND ONE HUNDRED NINETY NINE PESOS and 13/100 (P140,199.13)
representing reimbursement of actual expenses incurred by plaintiff in the operation and re-operation of his mandible;

b)

the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT PESOS (P29,068.00) representing reimbursement of the filing
fees and appearance fees;

c)

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

d)

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

e)

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

f)

the costs of the suit.

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

Cost against Dr. Rolando G. Gestuvo.

SO ORDERED.

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

Therefrom, both parties appealed to the CA.

The Ruling of the Court of Appeals

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

SO ORDERED.

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

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

Hence, the instant appeal.

The Issue

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

The Court's Ruling

The petition is impressed with merit.

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

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

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

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

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

Solidum v. People of the Philippines[11] provides an exception. There, the Court explained that where the application of
the principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical negligence cases:
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts. x x x

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the
area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while
a patient's jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an operation for appendicitis, among others.

We have further held that resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert
testimony in medical negligence cases may be availed of if the following essential requisites are satisfied: (1) the
accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that
caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the person injured.[12]

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

After careful consideration, this Court cannot accede to the CA's findings as it is at once apparent from the records that
the essential requisites for the application of the doctrine of res ipsa loquitur are present.

The first element was sufficiently established when Rosit proved that one of the screws installed by Dr. Gestuvo struck
his molar. It was for this issue that Dr. Gestuvo himself referred Rosit to Dr. Pangan. In fact, the affidavit of Dr. Pangan
presented by Dr. Gestuvo himself before the trial court narrated that the same molar struck with the screw installed by
Dr. Gestuvo was examined and eventually operated on by Dr. Pangan. Dr. Gestuvo cannot now go back and say that Dr.
Pangan treated a molar different from that which was affected by the first operation.

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

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

In any event, whether the screw hit Rosit's molar because it was too long or improperly placed, both facts are the
product of Dr. Gestuvo's negligence. An average man of common intelligence would know that striking a tooth with any
foreign object much less a screw would cause severe pain. Thus, the first essential requisite is present in this case.
Anent the second element for the res ipsa loquitur doctrine application, it is sufficient that the operation which resulted
in the screw hitting Rosit's molar was, indeed, performed by Dr. Gestuvo. No other doctor caused such fact.

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

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

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

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

What is more damning for Dr. Gestuvo is his failure to inform Rosit that such smaller screws were available in Manila,
albeit at a higher price.[16] As testified to by Dr. Gestuvo himself:

Court Alright.

This titanium materials according to you were already available in the Philippines since the time of Rosit's accident?

Witness

Yes, your Honor.

...

Court

Did you inform Rosit about the existence of titanium screws and plates which according to you is the screws and plates
of choice?

Witness

No, your Honor.

...

Witness

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

...

Court

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

Witness

Yes, that is true.

Li v. Soliman[17] made the following disquisition on the relevant Doctrine of Informed Consent in relation to medical
negligence cases, to wit:

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

...

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

The four adverted essential elements above are present here.

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

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

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

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

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

Dr. Pangan's Affidavit is not admissible

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

In Dantis v. Maghinang, Jr.,[19] the Court reiterated the oft-repeated rule that "an affidavit is merely hearsay evidence
where its affiant/maker did not take the witness stand." Here, Dr. Pangan never took the witness stand to affirm the
contents of his affidavit. Thus, the affidavit is inadmissible and cannot be given any weight. The CA, therefore, erred
when it considered the affidavit of Dr. Pangan, mpreso for considering the same as expert testimony.
Moreover, even if such affidavit is considered as admissible and the testimony of an expert witness, the Court is not
bound by such testimony. As ruled in Ilao-Quianay v. Mapile:[20]

Indeed, courts are not bound by expert testimonies. They may place whatever weight they choose upon such
testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly
within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the
witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor
of the side for whom he testifies, and any other matters which serve to illuminate his statements. The opinion of an
expert should be considered by the court in view of all the facts and circumstances of the case. The problem of the
evaluation of expert testimony is left to the discretion of the trial court whose ruling thereupon is not revicwable in the
absence of an abuse of that discretion.

Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of negligence or not will not bind the Court. The Court must
weigh and examine such testimony and decide for itself the merits thereof.

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

Damages

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

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

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

The trial court also properly awarded attorney's fees and costs of suit under Article 2208 of the Civil Code,[23] since
Rosit was compelled to litigate due to Dr. Gestuvo's refusal to pay for Rosit's damages.

As to the award of exemplary damages, the same too has to be affirmed. In Mendoza,[24] the Court enumerated the
requisites for the award of exemplary damages:

Our jurisprudence sets certain conditions when exemplary damages may be awarded: First, they may be imposed by
way of example or correction only in addition, among others, to compensatory damages, and cannot be recovered as a
matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the
claimant. Second, the claimant must first establish his right to moral, temperate, liquidated or compensatory damages.
Third, the wrongful act must be accompanied by bad faith, and the award would be allowed only if the guilty party acted
in a wanton, fraudulent, reckless, oppressive or malevolent manner.

The three (3) requisites are met. Dr. Gestuvo's actions are clearly negligent. Likewise, Dr. Gestuvo acted in bad faith or in
a wanton, fraudulent, reckless, oppressive manner when he was in breach of the doctrine of informed consent. Dr.
Gestuvo had the duty to fully explain to Rosit the risks of using large screws for the operation. More importantly, he
concealed the correct medical procedure of using the smaller titanium screws mainly because of his erroneous belief
that Rosit cannot afford to buy the expensive titanium screws. Such concealment is clearly a valid basis for an award of
exemplary damages.
WHEREFORE, the instant petition is GRANTED. The CA Decision dated January 22, 2013 and Resolution dated November
7, 2013 in CA-G.R. CV No. 00911-MIN are hereby REVERSED and SET ASIDE. Further, the Decision dated September 14,
2004 of the Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-99 is hereby REINSTATED and
AFFIRMED.

SO ORDERED.

Peralta, Villarama, Jr., Reyes, and Jardeleza, JJ., concur.

SECOND DIVISION

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

CARLOS BORROMEO, PETITIONER, VS. FAMILY CARE HOSPITAL, INC. AND RAMON S. INSO, M.D., RESPONDENTS.

DECISION

BRION, J.:

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

On January 22, 2010, the Court of Appeals (CA) in CA-G.R. CV No. 89096[1] dismissed Carlos' complaint and thus
reversed the April 10, 2007 decision of the Regional Trial Court (RTC) in Civil Case No. 2000-603-MK[2] which found the
respondents liable for medical negligence.

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

ANTECEDENTS

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

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

Dr. Inso suspected that Lilian might be suffering from acute appendicitis. However, there was insufficient data to rule out
other possible causes and to proceed with an appendectomy. Thus, he ordered Lilian's confinement for testing and
evaluation.
Over the next 48 hours, Lilian underwent multiple tests such as complete blood count, urinalysis, stool exam, pelvic
ultrasound, and a pregnancy test. However, the tests were not conclusive enough to confirm that she had appendicitis.

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

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

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

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

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

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

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

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

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

Dr. Inso and the nurses performed cardiopulmonary resuscitation (CPR) on Lilian. Dr. Inso also informed her family that
there may be a need to re-operate on her, but she would have to be put in an Intensive Care Unit (ICU). Unfortunately,
Family Care did not have an ICU because it was only a secondary hospital and was not required by the Department of
Health to have one. Dr. Inso informed the petitioner that Lilian would have to be transferred to another hospital.
At around 3:30 A.M., Dr. Inso personally called the Perpetual Help Medical Center to arrange Lilian's transfer, but the
latter had no available bed in its ICU. Dr. Inso then personally coordinated with the Muntinlupa Medical Center (MMC)
which had an available bed.

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

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

At the request of the petitioner, Lilian's body was autopsied at the Philippine National Police (PNP) Camp Crame Crime
Laboratory. Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the laboratory, conducted the autopsy. Dr.
Reyes summarized his notable findings as:

x x x I opened up the body and inside the abdominal cavity which you call peritoneal cavity there were 3,000 ml of clot
and unclot blood accumulated thereat. The peritoneal cavity was also free from any adhesion. Then, I opened up the
head and the brain revealed paper white in color and the heart revealed abundant petechial hemorrhages from the
surface and it was normal. The valvular leaflets were soft and pliable, and of course, the normal color is reddish brown
as noted. And the coronary arteries which supply the heart were normal and unremarkable. Next, the lungs appears [sic]
hemorrhagic. That was the right lung while the left lung was collapsed and paled. For the intestines, I noted throughout
the entire lengths of the small and large intestine were hemorrhagic areas. Noted absent is the appendix at the ileo-colic
area but there were continuous suture repair done thereat. However, there was a 0.5 x 0.5 cm opening or left
unrepaired at that time. There was an opening on that repair site. Meaning it was not repaired. There were also at that
time clot and unclot blood found adherent thereon. The liver and the rest of the visceral organs were noted exhibit [sic]
some degree of pallor but were otherwise normal. The stomach contains one glassful about 400 to 500 ml.[3]

Dr. Reyes concluded that the cause of Lilian's death was hemorrhage due to bleeding petechial blood vessels: internal
bleeding. He further concluded that the internal bleeding was caused by the 0.5 x 0.5 cm opening in the repair site. He
opined that the bleeding could have been avoided if the site was repaired with double suturing instead of the single
continuous suture repair that he found.

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

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

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

Moreover, Dr. Reyes admitted that he was not intelligently guided during the autopsy because he was not furnished
with clinical, physical, gross, histopath, and laboratory information that were important for an accurate conclusion. Dr.
Reyes also admitted that an appendical stump is initially swollen when sutured and that the stitches may loosen during
the healing process when the initial swelling subside.

In their defense, Dr. Inso and Family Care presented Dr. Inso, and expert witnesses Dr. Celso Ramos (Dr. Ramos) and Dr.
Herminio Hernandez (Dr. Hernandez).
Dr. Ramos is a practicing pathologist with over 20 years of experience. He is an associate professor at the Department of
Surgery of the Fatima Medical Center, the Manila Central University, and the Perpetual Help Medical Center. He is a
Fellow of the Philippine College of Surgeons, a Diplomate of the Philippine Board of Surgery, and a Fellow of the
Philippine Society of General Surgeons.

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

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

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

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

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

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

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

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

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

The respondents elevated the case to the CA and the appeal was docketed as CA-G.R. CV No. 89096.
On January 22, 2010, the CA reversed the RTC's decision and dismissed the complaint. The CA gave greater weight to the
testimonies of Dr. Hernandez and Dr. Ramos over the findings of Dr. Reyes because the latter was not an expert in
pathology, appendectomy, nor in surgery. It disregarded Dr. Avila's opinion because the basic premise of his testimony
was that the doctor who conducted the autopsy is a pathologist of equal or of greater expertise than Dr. Ramos or Dr.
Hernandez.

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

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

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

THE PETITION

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

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

OUR RULING

The petition involves factual questions.

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

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

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

The requisites of establishing medical malpractice

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

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

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

The expert witness must be a similarly trained and experienced physician. Thus, a pulmonologist is not qualified to
testify as to the standard of care required of an anesthesiologist[22] and an autopsy expert is not qualified to testify as a
specialist in infectious diseases.[23]

The petitioner failed to present an expert witness.

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

We join and affirm the ruling of the CA.

Other than their conclusion on the culpability of the respondents, the CA and the RTC have similar factual findings. The
RTC ruled against the respondents based primarily on the following testimony of Dr. Reyes.

Witness:

Well, if I remember right during my residency in my extensive training, during the operation of the appendix, your
Honor, it should really be sutured twice which we call double.

Court:

What would be the result if there is only single?

Witness:

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

Court:

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

Witness:

It is possible.[24]

Dr. Reyes testified that he graduated from the Manila Central University (MCU) College of Medicine and passed the
medical board exams in 1994.[25] He established his personal practice at his house clinic before being accepted as an
on-the-job trainee in the Department of Pathology at the V. Luna Hospital in 1994. In January 1996, he joined the PNP
Medico-Legal Division and was assigned to the Crime Laboratory in Camp Crame. He currently heads the Southern Police
District Medico-Legal division.[26] His primary duties are to examine victims of violent crimes and to conduct traumatic
autopsies to determine the cause of death.

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

Moreover, Dr. Reyes' cross-examination reveals that he was less than candid about his qualifications during his initial
testimony:

Atty. Castro:

Dr. Reyes, you mentioned during your direct testimony last March 5, 2002 that you graduated in March of 1994, is that
correct?

Witness:

Yes, sir.

Atty. Castro:

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

Witness:

Not in 1994, it was in 1984, sir.

Atty. Castro:

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

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:

Did you call that what you call a post graduate internship?

Witness:

Residency.

Atty. Castro:

Since you call that a post graduate, you were not undergo post graduate? [sic]

Witness:

I did.
Atty. Castro:

Where did you undergo a post graduate internship?

Witness:

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

Atty. Castro:

That was where?

Witness:

MCU Hospital, sir.

Atty. Castro:

After the post graduate internship that was the time you took the board examination?

Witness:

Yes, sir.

Atty. Castro:

And I supposed that you did it for the first take?

Witness:

Yes, sir.

Atty. Castro:

Are you sure of that?

Witness:

Yes, sir.

Atty. Castro:

After you took the board examination, did you pursue any study?

Witness:

During that time, no sir.

Atty. Castro:

You also testified during the last hearing that "page 6 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 Pathologist in 1994", could you explain briefly all of this Mr.
witness?

Witness:

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

Atty. Castro:

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

Witness:

Only as an observer status.

Atty. Castro:

So you only observed.

Witness:

Yes, sir.
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 my residency in my extensive training during the operation of the appendix," what do you mean by that Mr.
witness?

Witness:

I was referring to my internship, sir.

Atty. Castro:

So this is not a residency training?

Witness:

No, sir.

Atty. Castro:

This is not a specialty training?

Witness:

No, sir.

Atty. Castro:

This was the time the year before you took the board examination?

Witness:

That's right, sir. Yes, sir.

Atty. Castro:

You were not then a license[d] doctor?

Witness:

No, sir.

Atty. Castro:

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

...

Witness:

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

Atty. Castro:

So this is not referring to any kind of training?

Witness:

No, sir.

Atty. Castro:

This is not in anyway related to appendicitis?

Witness:

No, sir.[27]

Atty. Reyes appears to have inflated his qualifications during his direct testimony. First, his "extensive training during
[his] residency" was neither extensive actual training, nor part of medical residency. His assignment to the V. Luna
Hospital was not as an on-the-job trainee but as a mere observer. This assignment was also before he was actually
licensed as a doctor. Dr. Reyes also loosely used the terms "residence" and "residency" - terms that carry a technical
meaning with respect to medical practice -during his initial testimony[28] to refer to (1) his physical place of dwelling
and (2) his internship before taking the medical board exams. This misled the trial court into believing that he was more
qualified to give his opinion on the matter than he actually was.

Perhaps nothing is more telling about Dr. Reyes' lack of expertise in the subject matter than the petitioner's counsel's
own admission during Dr. Reyes' cross examination.

Atty. Castro:

How long were you assigned to observe with the Department of Pathology?

Witness:

Only 6 months, sir.

Atty. Castro:

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

Atty. Fajardo:

Your honor, what is the materiality?

Atty. Castro:

That is according to his background, your honor. This is a procedure which could more or less measure his knowledge in
autopsy proceedings when he was in medical school and compared to what he is actually doing now.

Atty. Fajardo:

The witness is not an expert witness, your honor.

Atty. Castro:

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

When Atty. Castro attempted to probe Dr. Reyes about his knowledge on the subject of medical or pathological
autopsies, Dr. Fajardo objected on the ground that Dr. Reyes was not an expert in the field. His testimony was offered to
prove that Dr. Inso was negligent during the surgery without necessarily offering him as an expert witness.

Atty. 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
the conduct of the appendectomy by the defendant doctor on the deceased Lilian Villaran Borromeo.[30]

Dr. Reyes is not an expert witness who could prove Dr. Inso's alleged negligence. His testimony could not have
established the standard of care that Dr. Inso was expected to observe nor assessed Dr. Inso's failure to observe this
standard. His testimony cannot be relied upon to determine if Dr. Inso committed errors during the operation, the
severity of these errors, their impact on Lilian's probability of survival, and the existence of other diseases/conditions
that might or might not have caused or contributed to Lilian's death.

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

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

Dr. Ramos graduated from the Far Eastern University, Nicanor Reyes Medical Foundation, in 1975. He took up his post-
graduate internship at the Quezon Memorial Hospital in Lucena City, before taking the board exams. After obtaining his
professional license, he underwent residency training in pathology at the Jose R. Reyes Memorial Center from 1977 to
1980. He passed the examination in Anatomic, Clinical, and Physical Pathology in 1980 and was inducted in 1981. He also
took the examination in anatomic pathology in 1981 and was inducted in 1982.[31]

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

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

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

Dr. Hernandez is a Fellow of the American College of Surgeons, the Philippine College of Surgeons, and the Philippine
Society of General Surgeons. He is a Diplomate of the Philippine Board of Surgery and a member of the Philippine
Medical Association and the Antipolo City Medical Society.[36]

Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual surgical procedure.[37] Both experts agreed that
Lilian could not have died from bleeding of the appendical vessel. They identified Lilian's cause of death as massive
blood loss resulting from DIC.

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

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

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

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

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

Where a patient who was scheduled for a cholecystectomy (removal of gall stones) but was otherwise healthy suffered
irreparable brain damage after being administered anesthesia prior to the operation.[39]
Where after giving birth, a woman woke up with a gaping burn wound close to her left armpit;[40]

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

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

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

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

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

SO ORDERED.
Title

Solidum vs. People

Case

G.R. No. 192123

Decision Date

Mar 10, 2014

A physician-anesthesiologist is acquitted of charges of reckless imprudence resulting in serious physical injuries after the
court finds that the doctrine of res ipsa loquitur does not apply and the prosecution fails to prove negligence beyond
reasonable doubt, while a public hospital is deemed not civilly liable in the case.

reckless imprudence

serious physical injuries

surgical operation Show more tags (12)

728 PHIL. 578

FIRST DIVISION

[ G.R. No. 192123, March 10, 2014 ]

DR. FERNANDO P. SOLIDUM, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence resulting in
serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had been part of the team of
anesthesiologists during the surgical pull-through operation conducted on a three-year old patient born with an
imperforate anus.[1]

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 1992[2] with an imperforate anus. Two days after his birth, Gerald
underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal wall,[3]
enabling him to excrete through a colostomy bag attached to the side of his body.[4]

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through operation.[5]
Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito LuceAo, Dr. Donatella ValeAa and
Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum
(Dr. Solidum).[6] During the operation, Gerald experienced bradycardia,[7] and went into a coma.[8] His coma lasted for
two weeks,[9] but he regained consciousness only after a month.[10] He could no longer see, hear or move.[11]
Agitated by her sonas helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for reckless
imprudence resulting in serious physical injuries with the City Prosecutoras Office of Manila against the attending
physicians.[12]

Upon a finding of probable cause, the City Prosecutoras Office filed an information solely against Dr. Solidum,[13]
alleging: a

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an anesthesiologist at the
Ospital ng Maynila, Malate, this City, and as such was tasked to administer the anesthesia on three-year old baby boy
GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been born with an
imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull through operation], did then
and there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of his judgment
would dictate under said circumstance, by failing to monitor and regulate properly the levels of anesthesia administered
to said GERALD ALBERT GERCAYO and using 100% halothane and other anesthetic medications, causing as a
consequence of his said carelessness and negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and
consequently a defect called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering
said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage and prejudice.

Contrary to law.[14]

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to Section
5 of Republic Act No. 8369 (The Family Courts Act of 1997),[15] where it was docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical injuries,[16] decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable
doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of TWO (2)
MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision
correccional as maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as moral damages and P100,000.00 as
exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.[17]

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,[18] the RTC excluded them
from solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2) months and one
(1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision correccional as
maximum and to indemnify jointly and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount
of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.[19]

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,[20] pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur.

...

x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by the OSG,
the accused himself testified that pre-operation tests were conducted to ensure that the child could withstand the
surgery. Except for his imperforate anus, the child was healthy. The tests and other procedures failed to reveal that he
was suffering from any known ailment or disability that could turn into a significant risk. There was not a hint that the
nature of the operation itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a failure in the
proper administration of anesthesia, the gravamen of the charge in this case. The High Court elucidates in Ramos vs.
Court of Appeals 321 SCRA 584 a

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would
not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to
an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not
only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove
a nexus between the particular act or omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical testimony to establish the standard of care.
Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and the injury sustained, and in line
with the hornbook rules on evidence, we will afford the factual findings of a trial court the respect they deserve in the
absence of a showing of arbitrariness or disregard of material facts that might affect the disposition of the case. People
v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of
negligence, it need not offend due process, as long as the accused is afforded the opportunity to go forward with his
own evidence and prove that he has no criminal intent. It is in this light not inconsistent with the constitutional
presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.[21]

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.[22]

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN UPHOLDING THE
PETITIONERaS CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL COURTaS OPINION, AND NOT ON THE BASIS
OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR MISAPPREHENSION OF FACTS WHICH IF
CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN
AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE
PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE
BASIS OF ITS PRESUMPTIVE CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE
DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO
OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE
ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS REGULATED BY AN
ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE
ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE BEING NO NEGLIGENCE ON THE
PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY
AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC AGENT
AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.[23]

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur was
applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence.

Ruling

The appeal is meritorious.

Applicability of the

Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as athe thing or the transaction speaks for itself.a The doctrine res ipsa loquitur
means that awhere the thing which causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those who have the management use proper care,
it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of
care.a[24] It is simply aa recognition of the postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence.
It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.a[25]

Jarcia, Jr. v. People[26] has underscored that the doctrine is not a rule of substantive law, but merely a mode of proof or
a mere procedural convenience. The doctrine, when applicable to the facts and circumstances of a given case, is not
meant to and does not dispense with the requirement of proof of culpable negligence against the party charged. It
merely determines and regulates what shall be prima facie evidence thereof, and helps the plaintiff in proving a breach
of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is
absent and not readily available.[27]

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and exhaustively
explained in Ramos v. Court of Appeals,[28] where the Court said a

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when
the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence
as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law
since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given
inference.

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

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the
area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while
a patientas jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily have followed if due care
had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something
more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a
suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or
surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the
only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore,
is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine
performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward
consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be utilized and the
defendant is called upon to explain the matter, by evidence of exculpation, if he could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be satisfied, to wit: (1) the
accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that
caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the person injured.[29]

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be
conceded without difficulty that the second and third elements were present, considering that the anesthetic agent and
the instruments were exclusively within the control of Dr. Solidum, and that the patient, being then unconscious during
the operation, could not have been guilty of contributory negligence, the first element was undeniably wanting. Luz
delivered Gerald to the care, custody and control of his physicians for a pull-through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he
experienced bradycardia during the operation, causing loss of his senses and rendering him immobile. Hypoxia, or the
insufficiency of oxygen supply to the brain that caused the slowing of the heart rate, scientifically termed as bradycardia,
would not ordinarily occur in the process of a pull-through operation, or during the administration of anesthesia to the
patient, but such fact alone did not prove that the negligence of any of his attending physicians, including the
anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the
operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting them to administer
atropine to the patient.[30]

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,[31] relevant portions of the
decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty. Early in the
morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection of the
patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call
from the hospital, advising him that the patient was having respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second time
to advise the doctor that the patient was not responding. The doctor ordered that a medicine be administered, and he
departed for the hospital. When he arrived, the physician who had been on call at the hospital had begun attempts to
revive the patient. Dr. Brigham joined him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of asphyxia, as
a result of a sudden, acute closing of the air passage. He also found that the air passage had been adequate to maintain
life up to 2 or 3 minutes prior to death. He did not know what caused the air passage to suddenly close.

...
It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies of
asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not in itself
prove that the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909
(1970). Nor is a bad result by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737,
258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case a Res Ipsa Loquitur A 24:10 (1972). The evidence presented is
insufficient to establish the first element necessary for application of res ipsa loquitur doctrine. The acute closing of the
patientas air passage and his resultant asphyxiation took place over a very short period of time. Under these
circumstances it would not be reasonable to infer that the physician was negligent. There was no palpably negligent act.
The common experience of mankind does not suggest that death would not be expected without negligence. And there
is no expert medical testimony to create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA correctly
affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care,
precaution, and vigilance that the circumstances justly demand, whereby such other person suffers injury.[32] Reckless
imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform
such act.[33]

Dr. Solidumas conviction by the RTC was primarily based on his failure to monitor and properly regulate the level of
anesthetic agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his report
except for an observation which, to all intents and purposes, has become the storm center of this dispute. He wanted to
correct one piece of information regarding the dosage of the anesthetic agent administered to the child. He declared
that he made a mistake in reporting a 100% halothane and said that based on the records it should have been 100%
oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record a A portion of the chart in the record was marked as Exhibit 1-A and 1-B to indicate the
administration at intervals of the anesthetic agent.

(b) the clinical abstract a A portion of this record that reads as follows was marked Exhibit 3A. 3B a Approximately 1 hour
and 45 minutes through the operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was
immediately administered. However, the bradycardia persisted, the inhalational agent was shut off, and the patient was
ventilated with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did not respond until
no cardiac rate can be auscultated and the surgeons were immediately told to stop the operation. The patient was put
on a supine position and CPR was initiated. Patient was given 1 amp of epinephrine initially while continuously doing
cardiac massage a still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45 secs,
patientas vital signs returned to normal. The entire resuscitation lasted approximately 3-5 mins. The surgeons were then
told to proceed to the closure and the childas vital signs throughout and until the end of surgery were: BP = 110/70; CR =
116/min and RR = 20-22 cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100% oxygen and
another dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it as 100% halothane. He
was asked to read the anesthesia record on the percentage of the dosage indicated, but he could only sheepishly note I
canat understand the number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It
only contains the information that the anesthetic plan was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and 45 minutes after the operation
began, bradycardia occurred after which the inhalational agent was shut off and the patient administered with 100%
oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was
the pure oxygen introduced after something went amiss in the operation and the halothane itself was reduced or shut
off.

The key question remains a what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertidoas admission is that there was no overdose of the anesthetic agent, and the accused Dr.
Solidum stakes his liberty and reputation on this conclusion. He made the assurance that he gave his patient the utmost
medical care, never leaving the operating room except for a few minutes to answer the call of nature but leaving behind
the other members of his team Drs. Abella and Razon to monitor the operation. He insisted that he administered only a
point 1% not 100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be enough
to show that she assisted in the operation and was therefore conversant of the things that happened. She revealed that
they were using a machine that closely monitored the concentration of the agent during the operation.

But most compelling is Dr. Solidumas interpretation of the anesthesia record itself, as he takes the bull by the horns, so
to speak. In his affidavit, he says, reading from the record, that the quantity of halothane used in the operation is one
percent (1%) delivered at time intervals of 15 minutes. He studiedly mentions a the concentration of halothane as
reflected in the anesthesia record (Annex D of the complaint-affidavit) is only one percent (1%) a The numbers indicated
in 15 minute increments for halothane is an indication that only 1% halothane is being delivered to the patient Gerard
Gercayo for his entire operation; The amount of halothane delivered in this case which is only one percent cannot be
summated because halothane is constantly being rapidly eliminated by the body during the entire operation.

...

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr. Vertido on the
question of the dosage of the anesthetic used on the child would not really validate the non-guilt of the anesthesiologist.
Led to agree that the halothane used was not 100% as initially believed, he was nonetheless unaware of the implications
of the change in his testimony. The court observed that Dr. Vertido had described the condition of the child as hypoxia
which is deprivation of oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a
failing central nervous system such as stupor, loss of consciousness, decrease in heart rate, loss of usual acuity and
abnormal motor function, are manifestations of this condition or syndrome. But why would there be deprivation of
oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court, whether oxygen or halothane was the object
of mistake, the detrimental effects of the operation are incontestable, and they can only be led to one conclusion a if the
application of anesthesia was really closely monitored, the event could not have happened.[34]

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt because the
circumstances cited by the CA were insufficient to establish that Dr. Solidum had been guilty of inexcusable lack of
precaution in monitoring the administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v. Court
of Appeals[35] that:

Whether or not a physician has committed an ainexcusable lack of precautiona in the treatment of his patient is to be
determined according to the standard of care observed by other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state
of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in
accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the profession but also that the physician's conduct in the
treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice
actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.

...

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

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

An action upon medical negligence a whether criminal, civil or administrative a calls for the plaintiff to prove by
competent evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient, as
created by the physician-patient relationship, to act in accordance with the specific norms or standards established by
his profession; (b) the breach of the duty by the physicianas failing to act in accordance with the applicable standard of
care; (3) the causation, i.e., there must be a reasonably close and causal connection between the negligent act or
omission and the resulting injury; and (4) the damages suffered by the patient.[36]

In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly
referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear
definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases are
highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge necessary
to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be determined
from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care by
which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under similar
circumstances. The specialty standard of care may be higher than that required of the general practitioner.[37]

The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice
may be measured, and it does not depend, therefore, on any individual physicianas own knowledge either. In attempting
to fix a standard by which a court may determine whether the physician has properly performed the requisite duty
toward the patient, expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier
of fact, ultimately determines the standard of care, after listening to the testimony of all medical experts.[38]

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to
the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to
determine whether the first three elements of a negligence and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the Chairman of the
Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that investigated the complaint
against Dr. Solidum, his testimony mainly focused on how his Committee had conducted the investigation.[39] Even
then, the report of his Committee was favorable to Dr. Solidum,[40] to wit:
Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation and was
administered general anesthesia by a team of anesthesia residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The
anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal reflex, administered atropine to
block it but despite the administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt
resuscitative measures were administered and spontaneous cardiac function re-established in less than five (5) minutes
and that oxygen was continuously being administered throughout, unfortunately, as later become manifest, patient
suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find that the
same were all in accordance with the universally accepted standards of medical care and there is no evidence of any
fault or negligence on the part of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented as a
Prosecution witness, but his testimony concentrated on the results of the physical examination he had conducted on
Gerald, as borne out by the following portions of his direct examination, to wit:

FISCAL CABARON

Doctor, what do you mean by General Anesthetic Agent?

WITNESS

General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case, halothane was used as a
sole anesthetic agent.

...

Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after the
operation, the patient experienced a bradycardia or slowing of heart rate, now as a doctor, would you be able to tell this
Honorable Court as to what cause of the slowing of heart rate as to Gerald Gercayo?

WITNESS

Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some reason one way or
another that might caused bradycardia.

FISCAL CABARON

What could be the possible reason?

Well bradycardia can be caused by anesthetic agent itself and that is a possibility, weare talking about possibility here.

What other possibility do you have in mind, doctor?

Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON

Now, this representation would like to ask you about the slowing of heart rate, now what is the immediate cause of the
slowing of the heart rate of a person?

WITNESS
Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal reflex in the neck
wherein the vagal receptors are located at the lateral part of the neck, when you press that, you produce the slowing of
the heart rate that produce bradycardia.

I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by the patient,
would that also cause the slowing of the heart rate?

Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen level in
the blood, the normal thing for the heart is to pump or to do not a bradycardia but a a to counter act the Hypoxia that is
being experienced by the patient (sic).

...

Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other anesthetic
medications probably were contributory to the production of hypoxia.

Yes, sir in general sir.[41]

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record and the
factors that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA

I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your last paragraph and if
you will affirm that as if it is correct?

aThe use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production of Hypoxia
and - - - -a

ATTY COMIA

And do you affirm the figure you mentioned in this Court Doctor?

WITNESS

Based on the records, I know the - - -

100%?

100% based on the records.

I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell me where
is 100%, the word aone hundreda or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can show to this
Honorable Court and even to this representation the word aone hundreda or 1-0-0 and then call me.

...

ATTY. COMIA
Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even the attention of the
Presiding Judge of this Court. Okay, you read one by one.

WITNESS

Well, are you only asking 100%, sir?

ATTY. COMIA

Iam asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or no?

WITNESS

Iam trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA

Okay, that was good, so you Honor please, may we request also temporarily, because this is just a xerox copy presented
by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum to the patient is 1% only so may
we request that this portion, temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then
this 1% Halothane also be bracketed and the same be marked as our Exhibit a1-Aa.

...

ATTY. COMIA

Doctor, my attention was called also when you said that there are so many factors that contributed to Hypoxia is that
correct?

WITNESS

Yes, sir.

I remember doctor, according to you there are so many factors that contributed to what you call hypoxia and according
to you, when this Gerald suffered hypoxia, there are other factors that might lead to this Hypoxia at the time of this
operation is that correct?

WITNESS

The possibility is there, sir.

And according to you, it might also be the result of such other, some or it might be due to operations being conducted
by the doctor at the time when the operation is being done might also contribute to that hypoxia is that correct?

That is a possibility also.

...

ATTY. COMIA

How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS

Well, that is a major operation sir.

In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald might [be]
exposed to some risk is that correct?
A

That is a possibility sir.

And which according to you that Gerald suffered hypoxia is that correct?

Yes, sir.

And that is one of the risk of that major operation is that correct?

That is the risk sir.[42]

At the continuation of his cross-examination, Dr. Vertido maintained that Geraldas operation for his imperforate anus,
considered a major operation, had exposed him to the risk of suffering the same condition.[43] He then corrected his
earlier finding that 100% halothane had been administered on Gerald by saying that it should be 100% oxygen.[44]

Dr. Solidum was criminally charged for afailing to monitor and regulate properly the levels of anesthesia administered to
said Gerald Albert Gercayo and using 100% halothane and other anesthetic medications.a[45] However, the foregoing
circumstances, taken together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly imprudent
in administering the anesthetic agent to Gerald. Indeed, Dr. Vertidoas findings did not preclude the probability that
other factors related to Geraldas major operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido
revealingly concluded in his report, instead, that aalthough the anesthesiologist followed the normal routine and
precautionary procedures, still hypoxia and its corresponding side effects did occur.a[46]

The existence of the probability about other factors causing the hypoxia has engendered in the mind of the Court a
reasonable doubt as to Dr. Solidumas guilt, and moves us to acquit him of the crime of reckless imprudence resulting to
serious physical injuries. aA reasonable doubt of guilt,a according to United States v. Youthsey:[47]

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt engendered
merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting
a fellow man. If, having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to
that degree of certainty as would lead you to act on the faith of it in the most important and crucial affairs of your life,
you may properly convict him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not
proof beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability. But we cannot
now find and declare him civilly liable because the circumstances that have been established here do not present the
factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There was really no
firm and competent showing how the injury to Gerard had been caused. That meant that the manner of administration
of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia experienced
by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of the hypoxia. We are
not allowed to do so, for civil liability must not rest on speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree of the
RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum.
The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal
action refers only to that arising from the offense charged.[48] It is puzzling, therefore, how the RTC and the CA could
have adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact
that Ospital ng Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower courts thereby
acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void as the product of
grave abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We deem it
important, then, to express the following observations for the instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not
respected from the outset. The RTC and the CA should have been alert to this fundamental defect. Verily, no person can
be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would
enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable
pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions for
subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of the
Revised Penal Code, Ospital ng Maynila must be shown to be a corporation aengaged in any kind of industry.a The term
industry means any department or branch of art, occupation or business, especially one that employs labor and capital,
and is engaged in industry.[49] However, Ospital ng Maynila, being a public hospital, was not engaged in industry
conducted for profit but purely in charitable and humanitarian work.[50] Secondly, assuming that Ospital ng Maynila
was engaged in industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the
discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee but a consultant of the
hospital. And, thirdly, assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not
happen here), the execution against him was unsatisfied due to his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the decision
promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting to
serious physical injuries; and MAKES no pronouncement on costs of suit.

SO ORDERED.

Sereno, C.J., Leonardo-De Castro, Villarama, Jr., and Reyes, JJ., concur.

EN BANC

[ G.R. No. 165279, June 07, 2011 ]

DR. RUBI LI, PETITIONER, VS. SPOUSES REYNALDO AND LINA SOLIMAN, AS PARENTS/HEIRS OF DECEASED ANGELICA
SOLIMAN, RESPONDENTS.

DECISION

VILLARAMA, JR., J.:

Challenged in this petition for review on certiorari is the Decision[1] dated June 15, 2004 as well as the Resolution[2]
dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision[3] dated
September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.

The factual antecedents:

On July 7, 1993, respondents' 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her
lower extremity at the St. Luke's Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma,
osteoblastic type,[4] a high-grade (highly malignant) cancer of the bone which usually afflicts teenage children. Following
this diagnosis and as primary intervention, Angelica's right leg was amputated by Dr. Jaime Tamayo in order to remove
the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of
recurrence and prevent the disease from spreading to other parts of the patient's body (metastasis), chemotherapy was
suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a
medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11) days
after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release
a death certificate without full payment of their hospital bill, respondents brought the cadaver of Angelica to the
Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem examination. The Medico-Legal
Report issued by said institution indicated the cause of death as "Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation."[5]

On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of death as follows:

Immediate cause : a. Osteosarcoma, Status Post AKA

Antecedent cause : b. (above knee amputation)

Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit[7] against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a
certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of Angelica's safety, health and
welfare by their careless administration of the chemotherapy drugs, their failure to observe the essential precautions in
detecting early the symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which bleeding
led to hypovolemic shock that caused Angelica's untimely demise. Further, it was specifically averred that petitioner
assured the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy ("Magiging
normal na ang 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 buhok. Manghihina").
Respondents thus claimed that they would not have given their consent to chemotherapy had petitioner not falsely
assured them of its side effects.

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 affect not only the cancer cells but also
the patient's normal body parts, including the lowering of white and red blood cells and platelets. She claimed that what
happened to Angelica can be attributed to malignant tumor cells possibly left behind after surgery. Few as they may be,
these have the capacity to compete for nutrients such that the body becomes so weak structurally (cachexia) and
functionally in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable and
triggers a chain of events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated Intravascular
Coagulation (DIC), as what the autopsy report showed in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on
testimonial evidence, principally the declarations of petitioner and respondents themselves. The following chronology of
events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelica's surgery and discussed with them
Angelica's condition. Petitioner told respondents that Angelica should be given two to three weeks to recover from the
operation before starting chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns
only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing business.[9] Petitioner, however,
assured them not to worry about her professional fee and told them to just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions
undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to
lessen the chance of the cancer to recur. She did not give the respondents any assurance that chemotherapy will cure
Angelica's cancer. During these consultations with respondents, she explained the following side effects of
chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of
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 kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually
talked with respondents four times, once at the hospital after the surgery, twice at her clinic and the fourth time when
Angelica's mother called her through long distance.[10] This was disputed by respondents who countered that petitioner
gave them assurance that there is 95% chance of healing for Angelica if she undergoes chemotherapy and that the only
side effects were nausea, vomiting and hair loss.[11] Those were the only side-effects of chemotherapy treatment
mentioned by petitioner.[12]

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three
weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the
laboratory tests requested by petitioner: Angelica's chest x-ray, ultrasound of the liver, creatinine and complete liver
function tests.[13] Petitioner proceeded with the chemotherapy by first administering hydration fluids to Angelica.[14]

The following day, August 19, petitioner began administering three chemotherapy drugs - Cisplatin,[15] Doxorubicin[16]
and Cosmegen[17] - intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella[18] and Dr.
Grace Arriete.[19] In his testimony, Dr. Marbella denied having any participation in administering the said chemotherapy
drugs.[20]

On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelica's face.[21] They
asked petitioner about it, but she merely quipped, "Wala yan. Epekto ng gamot."[22] Petitioner recalled noticing the skin
rashes on the nose and cheek area of Angelica. At that moment, she entertained the possibility that Angelica also had
systemic lupus and consulted Dr. Victoria Abesamis on the matter.[23]

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen
inhalation apparatus. This time, the reddish discoloration on Angelica's face had extended to her neck, but petitioner
dismissed it again as merely the effect of medicines.[24] Petitioner testified that she did not see any discoloration on
Angelica's face, nor did she notice any difficulty in the child's breathing. She claimed that Angelica merely complained of
nausea and was given ice chips.[25]

On August 22, 1993, at around ten o'clock in the morning, upon seeing that their child could not anymore bear the pain,
respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: "Dapat 15 Cosmegen pa
iyan. Okay, let's observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked petitioner's permission to
bring their child home. Later in the evening, Angelica passed black stool and reddish urine.[26] Petitioner countered that
there was no record of blackening of stools but only an episode of loose bowel movement (LBM). Petitioner also
testified that what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents
call it (petitioner described it in the vernacular as "naninigas ang kamay at paa"). She then requested for a serum calcium
determination and stopped the chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness
subsided.[27]

The following day, August 23, petitioner yielded to respondents' request to take Angelica home. But prior to discharging
Angelica, petitioner requested for a repeat serum calcium determination and explained to respondents that the
chemotherapy will be temporarily stopped while she observes Angelica's muscle twitching and serum calcium level.
Take-home medicines were also prescribed for Angelica, with instructions to respondents that the serum calcium test
will have to be repeated after seven days. Petitioner told respondents that she will see Angelica again after two weeks,
but respondents can see her anytime if any immediate problem arises.[28]

However, Angelica remained in confinement because while still in the premises of SLMC, her "convulsions" returned and
she also had LBM. Angelica was given oxygen and administration of calcium continued.[29]

The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she
had a fever and had difficulty breathing.[30] Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified
that at around 4:50 that 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 that
Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to combat any infection on the child's
body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina
asked petitioner what was happening to her daughter, petitioner replied, "Bagsak ang platelets ng anak mo." Four units
of platelet concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelica's
fever was high and her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of
blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For
two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in
frequency. Petitioner also denied that there were gadgets attached to Angelica at that time.[34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be
removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven o'clock
that evening, which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into
her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica
was given more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner
told Angelica not to remove the endotracheal tube because this may induce further bleeding.[35] She was also
transferred to the intensive care unit to avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of
Angelica's skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those
gadgets attached to her, saying "Ayaw ko na"; there were tears in her eyes and she kept turning her 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
time, the attending physician was Dr. Marbella who was shaking his head saying that Angelica's platelets were down and
respondents should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over
his daughter's case, Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in her
breathing and blood was being suctioned from her stomach. A nurse was posted inside Angelica's room to assist her
breathing and at one point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that
Angelica already experienced difficulty in urinating and her bowel consisted of blood-like fluid. Angelica requested for an
electric fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful
because they could not even locate her vein. Angelica asked for a fruit but when it was given to 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 three o'clock in the morning of September 1, a priest came and
they prayed before Angelica expired. Petitioner finally came back and supposedly told respondents that there was
"malfunction" or bogged-down machine.[37]

By petitioner's own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelica's
skin was indeed sloughing off.[38] She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube.
[39] On September 1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died.[40] The cause
of death, according to petitioner, was septicemia, or overwhelming infection, which caused Angelica's other organs to
fail.[41] Petitioner attributed this to the patient's poor defense mechanism brought about by the cancer itself.[42]

While he was seeking the release of Angelica's cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly
and called him names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill.[43]

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory
who conducted the autopsy on Angelica's cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist
employed at the Department of Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids
recovered from the abdominal cavity, which is not normal, and was due to 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 at the back and lower portion, due to accumulation of fluids; (4)
yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on account of hemorrhages; and (6)
reddishness on external surface of the spleen. All these were the end result of "hypovolemic shock secondary to
multiple organ hemorrhages and disseminated intravascular coagulation." Dr. Vergara opined that this can be attributed
to the chemical agents in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient
to cause the victim's death. The time lapse for the production of DIC in the case of Angelica (from the time of diagnosis
of sarcoma) was too short, considering the survival rate of about 3 years. The witness conceded that the victim will also
die of osteosarcoma even with amputation or chemotherapy, but in this case Angelica's death was not caused by
osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her statements were based on the opinion of an
oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had DIC prior to the
chemotherapy, the hospital staff could have detected it.[44]

On her part, Dr. Balmaceda declared that it is the physician's duty to inform and explain to the patient or his relatives
every known side effect of the procedure or therapeutic agents to be administered, before securing the consent of the
patient or his relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his
personal assessment of the patient's condition and his knowledge of the general effects of the agents or procedure that
will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all known side
effects based on studies and observations, even if such will aggravate the patient's condition.[45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica's lower extremity, testified for the defendants.
He explained that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part
will completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern
chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the
cancer to other vital organs like the liver, causing systemic complications. The modes of therapy available are the
removal of the primary source of the cancerous growth and then the residual cancer cells or metastasis should be
treated with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor defense
mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had previously explained to her
parents that after the surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells will
hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a competent oncologist.
Considering that this type of cancer is very aggressive and will metastasize early, it will cause the demise of the patient
should there be no early intervention (in this case, the patient developed sepsis which caused her death). Cancer cells in
the blood cannot be seen by the naked eye 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 within six months from amputation because he did not see them anymore after follow-up; it is either they
died or had seen another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best
known procedures and employed her highest skill and knowledge in the administration of chemotherapy drugs on
Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he considered
petitioner one of the most proficient in the treatment of cancer and that the patient in this case was afflicted with a very
aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using the standard of negligence laid
down in Picart v. Smith,[47] the trial court declared that petitioner has taken the necessary precaution against the
adverse effect of chemotherapy on the patient, adding that a wrong decision is not by itself negligence. Respondents
were ordered to pay their unpaid hospital bill in the amount of P139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trial court's finding that there was no negligence
committed by the petitioner in the administration of chemotherapy treatment to Angelica, found that petitioner as her
attending physician failed to fully explain to the respondents all the known side effects of chemotherapy. The appellate
court stressed that since the respondents have been told of only three side effects of chemotherapy, they readily
consented thereto. Had petitioner made known to respondents those other side effects which gravely affected their
child -- such as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and eventual death
-- respondents could have decided differently or adopted a different course of action which could have delayed or
prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants' child was suffering from a malignant disease. The attending physician recommended that she
undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the
chemotherapy treatment because they believed in Dr. Rubi Li's representation that the deceased would have a strong
chance of survival after chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were
only three possible side-effects of the treatment. However, all sorts of painful side-effects resulted from the treatment
including the premature death of Angelica. The appellants were clearly and totally unaware of these other side-effects
which manifested only during the chemotherapy treatment. This was shown by the fact that every time a problem
would take place regarding Angelica's condition (like an unexpected side-effect manifesting itself), they would
immediately seek explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating in the loss of a love[d]
one caused the appellants so much trouble, pain and suffering.

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-appellants to
their claim for damages.

...
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the extent
that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:

Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

Moral damages of P200,000.00;

Exemplary damages of P50,000.00;

Attorney's fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side
effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and
attorney's fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures and in the
administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues that it
was foolhardy to imagine her to be all-knowing/omnipotent. While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent doctor, petitioner cannot possibly
predict how a particular patient's genetic make-up, state of mind, general health and body constitution would respond
to the treatment. These are obviously dependent on too many known, unknown and immeasurable variables, thus
requiring that Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner asserts that
she did everything within her professional competence to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical
affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear
showing or proof, she cannot be charged with negligence in not informing the respondents all the side effects of
chemotherapy or in the pre-treatment procedures done on Angelica.

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 cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate to
chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner
then points to some probable consequences if Angelica had not undergone chemotherapy. Thus, without
chemotherapy, other medicines and supportive treatment, the patient might have died the next day because of massive
infection, or the cancer cells might have spread to the brain and brought the patient into a coma, or into the lungs that
the patient could have been hooked to a respirator, or into her kidneys that she would have to undergo dialysis. Indeed,
respondents could have spent as much because of these complications. The patient would have been deprived of the
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 the damages suffered by the
respondents.[50]

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 child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner
was negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type
of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in
most cases a physician, either failed to do something which a reasonably prudent health care provider would have done,
or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action
caused injury to the patient.[51]

This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in
the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified physicians stems from the former's realization that the latter
possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence the
indispensability of expert testimonies.[52]

In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the
administration of chemotherapy drugs to respondents' child was not proven considering that Drs. Vergara and
Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to whether
petitioner's lack of skill, knowledge and professional competence in failing to observe the standard of care in her line of
practice was the proximate cause of the patient's death. Furthermore, respondents' case was not at all helped by the
non-production of medical records by the hospital (only the biopsy result and medical bills were submitted to the court).
Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of
chemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient relationships goes far back into English
common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact
with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the
United States, the seminal case was Schoendorff v. Society of New York Hospital[53] which involved unwanted
treatment performed by a doctor. Justice Benjamin Cardozo's oft-quoted opinion upheld the basic right of a patient to
give consent to any medical procedure or treatment: "Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who performs an operation without his patient's
consent, commits an assault, for which he is liable in damages."[54] From a purely ethical norm, informed consent
evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury
might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare,
and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently
exercise his judgment by reasonably balancing the probable risks against the probable benefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not be limited to medical
usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patient's right of self-
determination on particular therapy demands a standard set by law for physicians rather than one which physicians may
or may not impose upon themselves.[57] The scope of disclosure is premised on the fact that patients ordinarily are
persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physician's
responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information
which the patient has every right to expect. Indeed, the patient's reliance upon the physician is a trust of the kind which
traditionally has exacted obligations beyond those associated with armslength transactions.[58] The physician is not
expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable
explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy
alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or
no treatment.[59] As to the issue of demonstrating what risks are considered material necessitating disclosure, it was
held that experts are unnecessary to a showing of the materiality of a risk to a patient's decision on treatment, or to the
reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known
must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in
malpractice actions generally, there must be a causal relationship between the physician's failure to divulge and damage
to the patient.[60]
Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physician's overall obligation
to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers
inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks
inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low
incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of
surgery or treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child
or incompetent.[62] The court thus concluded that the patient's right of self-decision can only be effectively exercised if
the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physician's
communications to the patient, then must be measured by the patient's need, and that need is whatever information is
material to the decision. The test therefore for determining whether a potential peril must be divulged is its materiality
to the patient's decision.[63]

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure
to inform patient, there must be causal relationship between physician's failure to inform and the injury to patient and
such connection arises only if it is established that, had revelation been made, consent to treatment would not have
been given.

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed
consent: "(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those
risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise
would not have consented to; and (4) plaintiff was injured by the proposed treatment." The gravamen in an informed
consent case requires the plaintiff to "point to significant undisclosed information relating to the treatment which would
have altered her decision to undergo it.[64]

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

As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended
treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to
respondents' claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors
like petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapy's
success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of
potential harms, so specific disclosures such as statistical data, may not be legally necessary.[65]

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 based on lack of informed consent,
"the plaintiff must prove both the duty and the breach of that duty through expert testimony.[66] Such expert testimony
must show the customary standard of care of physicians in the same practice as that of the defendant doctor.[67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOH's Operational
and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to
establish the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in
this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack
of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an
evolving one.

As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic
impetus to cure, the law defining "adequate" disclosure has undergone a dynamic evolution. A standard once guided
solely by the ruminations of physicians is now dependent on what a reasonable person in the patient's position regards
as significant. This change in perspective is especially important as medical breakthroughs move practitioners to the
cutting edge of technology, ever encountering new and heretofore unimagined treatments for currently incurable
diseases or ailments. An adaptable standard is needed to account for this constant progression. Reasonableness
analyses permeate our legal system for the very reason that they are determined by social norms, expanding and
contracting with the ebb and flow of societal evolution.

As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not subject to
construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational
starting point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case.
Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by
what they perceive as the common expectation of the medical consumer--"a reasonable person in the patient's position
when deciding to accept or reject a recommended medical procedure."[68] (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution
dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is
REINSTATED and UPHELD.

No costs.

x x x It is evident that many of the issues typically involved in nondisclosure cases do not reside peculiarly within the
medical domain. Lay witness testimony can competently establish a physician's failure to disclose particular risk
information, the patient's lack of knowledge of the risk, and the adverse consequences following the treatment. Experts
are unnecessary to a showing of the materiality of a risk to a patient's decision on treatment, or to the reasonably,
expectable effect of risk disclosure on the decision. (Emphasis supplied)

In Betterton v. Leichtling,[6] the Court of Appeals of California held that, "Whether to disclose a significant risk is not a
matter reserved for expert opinion."

Again, under the patient standard of materiality, a doctor is obligated to disclose that information which a reasonable
patient would deem material in deciding whether to proceed with a proposed treatment. Stated differently, what should
be disclosed depends on what a reasonable person, in the same or similar situation as the patient, would deem material
in deciding whether to proceed with the proposed treatment.

The testimony of an expert witness is necessary to determine the associated risks and side effects of the treatment. This
is the only purpose. In the present case, an expert witness identified the associated risks and side effects of
chemotherapy -- Dr. Li is an expert in oncology. In its 5 September 1997 Decision, the Regional Trial Court (RTC), Judicial
Region 5, Branch 8, Legazpi City, stated that:

Dr. Rubi Li is a Doctor of Medicine and a Medical Oncologist. She obtained her degree in Medicine in 1981 at the
University of the East. She went on Junior Internship for one year in Rizal Medical Center wherein she was exposed to
different diseases and specifications. After the post-graduate internship she underwent six (6) months rural service
internship and then took and passed the board examination. She likewise underwent a 3-year residency training in
internal medicine wherein she was exposed to different patients, particularly patients with bone diseases and cancer
patients, including their treatment. After the residency training in internal medicine, one becomes an internist. She
likewise underwent sub-specialty training in medical oncology wherein she dealt with cancer patients, including bone
and breast cancers, and learned how to deal with the patient as a whole and the treatment. Before she was admitted to
the Society of Medical Oncologists, she first took the test for and registered with the Philippine College of Physicians.
She was likewise invited to join the Society of Clinical Oncologists. She has written and has been co-authoring papers on
cancer and now she is into the training program of younger doctors and help them with their papers.

Every year Dr. Li goes to conventions, usually in May, known as the American Society of Clinical Oncologist Convention,
wherein all the sub-specialties in cancer treatment and management meet and the latest in cancer treatment and
management is [sic] presented. In December of each year the Philippine Society of Medical Oncologists have their
convention wherein the latest with regards [sic] to what is going on in the Philippines is presented. They also have an
upgrading or what they call continuous medical education with [sic] cancer, which is usually every now and then,
especially when there are foreign guests from abroad.

Dr. Li has been dealing with bone cancer treatment for almost thirteen (13) years now and has seen more than 5,000
patients.

As an expert, Dr. Li identified the associated risks and side effects of chemotherapy: (1) falling hair; (2) nausea; (3)
vomiting; (4) loss of appetite; (5) lowering of white blood cell count; (6) lowering of red blood cell count; (7) lowering of
platelet count; (8) sterility; (9) damage to the kidneys; (10) damage to the heart; (11) skin darkening; (12) rashes; (13)
difficulty in breathing; (14) fever; (15) excretion of blood in the mouth; (16) excretion of blood in the anus; (17)
development of ulcers in the mouth; (18) sloughing off of skin; (19) systemic lupus erythematosus; (20) carpo-pedal
spasm; (21) loose bowel movement; (22) infection; (23) gum bleeding; (24) hypovolemic shock; (25) sepsis; and (26)
death in 13 days.

Dr. Li admitted that she assured Reynaldo and Lina that there was an 80% chance that Angelica's cancer would be
controlled and that she disclosed to them only some of the associated risks and side effects of chemotherapy. In its 5
September 1997 Decision, the RTC stated that:

By way of affirmative and special defenses, Dr. Rubi Li alleged that she saw the deceased patient, Angelica Soliman, and
her parents on July 25, 1993, and discussed the patient's condition and the possibility of adjuvant chemotherapy x x x.
The giving of chemotherapy is merely in aid, or an adjuvant, of surgery, hoping to prevent or control the recurrence of
the malignant disease (cancer). The plaintiffs were likewise told that there is 80% chance that the cancer could be
controlled and that no assurance of cure was given, considering that the deceased was suffering from cancer which up
to this moment, cure is not yet discovered and not even the exact cause of cancer is known up to the present.

Plaintiffs were likewise informed that chemotherapy will be given through dextrose and will, therefore, affect not only
the cancer cells, but also the patient's normal parts of the body, more particularly the fast growing parts, and as a result,
the patient was expected to experience, as she has in fact experienced, side effects consisting of: 1) Falling hair; 2)
Nausea and vomiting; 3) Loss of appetite considering that there will be changes in the taste buds of the tongue and lead
to body weakening; 4) Low count of white blood cells (WBC count), red blood cells (RBC count), and platelets as these
would be lowered by the chemotherapy; 5) The deceased patient's ovaries may be affected resulting to sterility; 6) The
kidneys and the heart might be affected; and 7) There will be darkening of the skin especially when the skin is exposed
to sunlight.

Thus, Dr. Li impliedly admits that she failed to disclose to Reynaldo and Lina many of the other associated risks and side
effects of chemotherapy, including the most material -- infection, sepsis and death. She impliedly admits that she failed
to disclose as risks and side effects (1) rashes; (2) difficulty in breathing; (3) fever; (4) excretion of blood in the mouth; (5)
excretion of blood in the anus; (6) development of ulcers in the mouth; (7) sloughing off of skin; (8) systemic lupus
erythematosus; (9) carpo-pedal spasm; (10) loose bowel movement; (11) infection; (12) gum bleeding; (13) hypovolemic
shock; (14) sepsis; and (15) death in 13 days.

Clearly, infection, sepsis and death are material risks and side effects of chemotherapy. To any reasonable person, the
risk of death is one of the most important, if not the most important, consideration in deciding whether to undergo a
proposed treatment. Thus, Dr. Li should have disclosed to Reynaldo and Lina that there was a chance that their 11-year
old daughter could die as a result of chemotherapy as, in fact, she did after only 13 days of treatment.

In Canterbury and in Wilkinson, the Court of Appeals of District of Columbia and Supreme Court of Rhode Island,
respectively, held that, "A very small chance of death x x x may well be significant." In the present case, had Reynaldo
and Lina fully known the severity of the risks and side effects of chemotherapy, they may have opted not to go through
with the treatment of their daughter. In fact, after some of the side effects of chemotherapy manifested, they asked Dr.
Li to stop the treatment.

The facts, as stated by the RTC and the Court of Appeals, clearly show that, because of the chemotherapy, Angelica
suffered lowering of white blood cell count, lowering of red blood cell count, lowering of platelet count, skin darkening,
rashes, difficulty in breathing, fever, excretion of blood in the mouth, excretion of blood in the anus, development of
ulcers in the mouth, sloughing off of skin, systemic lupus erythematosus, carpo-pedal spasm, loose bowel movement,
infection, gum bleeding, hypovolemic shock, sepsis, and death after 13 days.

After the administration of chemotherapy, Angelica suffered infection, which progressed to sepsis. Thereafter, Angelica
died. In its 5 September 1997 Decision, the RTC stated that:

Angelica Soliman was admitted at the St. Luke's Medical Center on August 18, 1993. Preparatory to the chemotherapy,
she was hydrated to make sure that her kidneys will function well and her output was monitored. Blood test, blood
count, kidney function test and complete liver function test were likewise done. Chemotherapy started on August 19,
1993 with the administration of the three drugs, namely, Cisplatine, Doxorubicin and Cosmegen. In the evening Angelica
started vomiting which, according to Dr. Rubi Li, was just an effect of the drugs administered.

Chemotherapy was likewise administered on August 20, 1993. Vomiting continued. On August 21, 1993 Angelica Soliman
developed redness or rashes all over her face, particularly on the nose and cheek area, which on subsequent day
became darker and has spread to the neck and chest. Dr. Li told plaintiffs that was just a reaction or effect of the
medicines and it was normal. Vomiting likewise continued. Dr. Li then consulted Dr. Abesamis, a pediatric oncologist,
because she was entertaining the possibility that the patient might also have systemic lupus erythematosus.

Angelica Soliman developed fever and difficulty of breathing on the fourth day and she became weak already. She was
placed on oxygen and antibiotics. Her blood count was checked. Dr. Li began to entertain the possibility of infection, the
lungs being considered the focus of such infection. An auscultation of the lungs showed just harsh breathing sounds. She
was given Bactrim. The following day the antibiotic was changed into something stronger by giving the patient Fortum
intravenously. Dr. Li started to consider the possibility of beginning sepsis, meaning that the germs or bacteria were
already in the blood system. Fortum did not, however, take effect. White cells were down and it was not enough to
control the infection because there was nothing in her body to fight and help Fortum fight the infection. Another
medicine, Leucomax, was added that would increase the patient's white cell count, but even this did not help.

Plaintiffs then requested Dr. Li to stop the chemotherapy. Dr. Li complied, although according to her the chemotherapy
should not be stopped. So chemotherapy was not given on August 22, 1993. Plaintiffs then asked if they could already
bring their daughter home. They were permitted by Dr. Li.
On August 23, 1993, preparatory to the discharge, Dr. Li prescribed take home medicines, but while still in the premises
of SLMC, Angelica Soliman had a convulsive attack so she was placed back to her room.

This convulsive attack mentioned by the plaintiffs was actually what is referred to as "carpopedal spasm" in medical
parlance, which Dr. Li described as "naninigas ang kamay at paa." It is a twitching of a group of muscles of the hands and
legs. The patient's calcium was checked and it was noted to be low, so she was given supplemental calcium which
calmed her down. ECG was likewise conducted. Angelica Soliman started to bleed through the mouth. This, according to
Dr. Li, was only a spitting of blood because at that time the patient had gum bleeding. Dr. Li told plaintiffs the bleeding
was due to platelet reduction. Angelica Soliman was then transferred to a private room wherein the plaintiffs
themselves were required to wear a mask to avoid any infection as their daughter was already sensitive and they might
have colds or flu and might contaminate the patient who was noted to have low defense mechanism to infection.
Plaintiffs were asked to sign a consent form for blood transfusion. Patient was transfused with more than three (3) bags
of blood and platelets. The bleeding was lessened, but she became weak.

The bleeding and blood transfusion continued until August 31, 1993. Angelica Soliman became hysterical and uneasy
with the oxygen and nasogastric tube attached to her. Parts of her skin were shredding or peeling off, and according to
plaintiffs, she already passed black stool.

On September 1, 1993, at around 3:00 p.m., Angelica Soliman died, but prior to her demise, she pulled out her
endotracheal tube at 9:30 p.m. of August 31, 1993.

As admitted by Dr. Li, infection, sepsis and death are associated risks and side effects of chemotherapy. These risks and
side effects are material to Reynaldo and Lina, and to any other reasonable person, in deciding whether to undergo
chemotherapy. Had Dr. Li adequately disclosed to Reynaldo and Lina that there was a chance that their 11-year old
daughter could die of infection as a result of chemotherapy, they may have decided against it and sought for an
alternative treatment.

Accordingly, I vote to DENY the petition.

[1] 110 R.I. 606, 295 A. 2d 676, 69 A.L.R. 3d 1202.

[2] 274 III. App. 3d 543, 653 N.E. 2d 1317.

[3] 125 Idaho 705, 874 P. 2d 516.

[4] 199 Wis. 2d 615, 545 N.W. 2d 495.

[5] 464 F. 2d 772, 150 U.S. App. D.C. 263.

[6] 101 Cal. App. 4Th 749.

SEPARATE OPINION
BRION, J.:

I. The Concurrence and Supporting Reasons

I concur in the result with the ponencia and its conclusion that the respondents failed to prove by preponderance of
evidence the essential elements of a cause of action based on the doctrine of informed consent. This case presents to us
for the first time the application of the common-law doctrine of informed consent in a medical negligence case, based
on Article 2176 of the Civil Code. I do not question the applicability of this novel doctrine in this jurisdiction.

However, I do not agree with the ponencia's conclusion that "there was adequate disclosure of material risks of the
[chemotherapy administered] with the consent of Angelica's parents" [1] in view of a complete absence of competent
expert testimony establishing a medical disclosure standard in the present case. As I shall discuss below, the
respondents failed to sufficiently establish the information that should have been disclosed to enable them to arrive at a
decision on how proceed with the treatment.

As in any ordinary medical negligence action based on Article 2176 of the Civil Code, the burden to prove the necessary
elements - i.e., duty, breach, injury and proximate causation - rests with the plaintiff. [2] In a lack of informed consent
litigation, the plaintiff must prove by preponderance of evidence the following requisites: [3]

(1) the physician had a duty to disclose material risks;

(2) he failed to disclose or inadequately disclosed those risks;

(3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would
not have consented to; and

(4) plaintiff was injured by the proposed treatment.

Of crucial significance in establishing the elements involved in medical negligence cases is expert medical testimony
since the facts and issues to be resolved by the Court in these cases are matters peculiarly within the knowledge of
experts in the medical field. [4]

I base my conclusion on the ground that the respondents failed to prove by competent expert testimony the first and
fourth elements of a prima facie case for lack of informed consent, specifically:

(1) the scope of the duty to disclose and the violation of this duty, i.e., the failure to define what should be disclosed and
to disclose the required material risks or side effects of the chemotherapy that allow the patient (and/or her parents) to
properly decide whether to undergo chemotherapy; and

(2) that the chemotherapy administered by the petitioner proximately caused the death of Angelica Soliman.

II. Background
On July 7, 1993, the respondents Spouses Reynaldo and Lina Soliman's (respondents) 11-year old daughter, Angelica
Soliman (Angelica), was diagnosed with osteosarcoma, osteoblastic type (cancer of the bone) after a biopsy of the mass
in her lower extremity showed a malignancy. Following this diagnosis, Dr. Jaime Tamayo (Dr. Tamayo) of the St. Luke's
Medical Center (SLMC) amputated Angelica's right leg to remove the tumor. Dr. Tamayo also recommended adjuvant
chemotherapy to eliminate any remaining cancer cells and prevent its spread to the other parts of the body, and
referred Angelica to the petitioner Dr. Rubi Li (petitioner), an oncologist. [5]

On July 23, 1993, the petitioner saw the respondents and discussed with them Angelica's condition. [6] The petitioner
claims that she did not then give the respondents any assurance that chemotherapy would cure Angelica's cancer
considering that "a cure for cancer has not been discovered" and "its exact cause is not known up to the present"; she
merely told them that there is 80% chance that the cancer [of Angelica] could be controlled [by chemotherapy]. [7] In
her Answer, the petitioner alleges that she informed the respondents that chemotherapy will be administered
intravenously; the chemotherapy will flow throughout Angelica's body and will affect not only the cancer cells but also
the fast growing "normal" parts of her body. She also then disclosed and explained to the respondents the following side
effects of chemotherapy:

(1) Falling hair;

(2) Nausea and vomiting;

(3) Loss of appetite considering that there will be changes in the taste buds of the tongue and lead to body weakness
and this defendant therefore, in anticipation of the changes in the taste buds, instructed the plaintiffs to teach and
encourage the deceased patient to eat even though she has no normal taste;

(4) Low count of white blood cells (WBC count), red blood cells (RBC count), and platelets as these would be lowered by
the chemotherapy and therefore this defendant had to check these counts before starting the chemotherapy (it is
important to note at this point that white blood cells [WBC] are the cells that defend the body against infection);

(5) The deceased patient's ovaries may be affected resulting to sterility;

(6) The kidneys and the heart might be affected so that this defendant had to check the status of these organs before
starting chemotherapy;

(7) There will be darkening of the skin especially when the skin is exposed to sunlight. [8]

The respondents, however, disputed this claim and countered that the petitioner gave them an assurance that there was
a 95% chance of healing if Angelica would undergo chemotherapy - "Magiging normal na ang anak nyo basta ma-chemo.
95 % ang healing. - and that the side effects were only hair loss, vomiting and weakness - "Magsusuka ng kaunti.
Malulugas ang buhok. Manghihina." [9]

On August 18, 1993, Angelica was readmitted to the SLMC for chemotherapy. Upon admission, Angelica's mother,
respondent Lina Soliman, signed the Consent for Hospital Care, which pertinently stated: [10]

Permission is hereby given to the medical, nursing and laboratory staff of St. Luke's Medical Center to perform such
diagnostic procedures and administer such medications and treatments as may be deemed necessary or advisable by
the Physicians of this hospital [for my daughter] during this confinement. It is understood that such procedures may
include blood transfusions, intravenous or other injections and infusions[,] administrations of serums, antitoxins and
toxoids for treatment or prophylaxis, local of (sic) general anesthesia, spinal puncture, bone marrow puncture,
venessection, thoracentesis, paracenthesis, physiotherapy and laboratory test.

The following day, the petitioner intravenously administered three chemotherapy drugs, namely: Cisplatin, Doxorubicin
and Cosmegen. On September 1, 1993, or thirteen days after the induction of the first cycle of chemotherapy, Angelica
died. [11] The autopsy conducted by the Philippine National Police (PNP) Crime Laboratory indicated the cause of death
as "Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation." [12]

On February 21, 1994, the respondents filed a case for damages against the petitioner, Dr. Leo Marbella, a certain Dr.
Arriete and SLMC. The respondents raised two causes of action; the first cause of action was based on the petitioner's
negligence in the administration of the chemotherapy, and the second cause of action was based on the petitioner's
negligence in failing to disclose the risks or side effects of chemotherapy so that they could give a valid informed
consent. [13] In her Answer, the petitioner countered that she was not negligent and that the massive bleeding that
caused Angelica's death was brought about by her underlying condition and the sepsis that resulted from her weakened
immune system. [14]

a. The RTC Ruling

The trial court dismissed the complaint and held that the petitioner was not negligent since she observed the best
known procedures and employed her highest skill and knowledge in the administration of the chemotherapy to
Angelica. It cited Dr. Tamayo's testimony that he knew the petitioner as one of the most proficient in the treatment of
cancer and that Angelica was afflicted with a very aggressive type of cancer that necessitated adjuvant chemotherapy.
[15]

b. The CA Ruling

On appeal, the Court of Appeals (CA) - while concurring with the trial court's finding that the petitioner was not
negligent in the administration of the chemotherapy to Angelica - found the petitioner negligent in failing to explain fully
to the respondents all the known side effects of the chemotherapy. The CA gave credence to the respondents' testimony
that the petitioner merely told them of only three side effects of chemotherapy, which prompted them to readily give
their consent. The CA stressed that had the petitioner made known to the respondents the other side effects (carpo-
pedal spasm, sepsis, decrease in platelet counts, bleeding, infection and death), which gravely affected Angelica, they
could have decided differently or took a different course of action, which could have delayed or prevented the early
death of their child. [16]

c. The Respondents' Supporting Testimonies

Angelica's medical records were not submitted in evidence; instead, the Regional Trial Court (RTC) and the CA solely
relied on the testimonial evidence of the petitioner and the respondents.

In support of her Complaint, the respondent Lina Soliman testified on direct examination that on August 18, 1993,
Angelica was admitted to the SLMC for chemotherapy. She declared that the petitioner examined Angelica on that same
day and administered dextrose on her. The petitioner assured them that if Angelica is subjected to chemotherapy, there
will be a "95% chance" that "she will be normal" and that the "possible side effects of chemotherapy" are "falling of the
hair, vomiting and weakness (manghihina)." [17] On cross examination, the respondent Lina Soliman clarified that "when
she insisted on some other possible side effect," the petitioner said that those three she mentioned "were the only
[side] effects." [18] During rebuttal, the respondent Lina Soliman testified that the petitioner gave them a "90%
guarantee that if [her] daughter will be subjected to chemotherapy, [her] child will recover completely." [19] Finally, she
declared that she was only aware of the three side effects and had she known all the side effects of chemotherapy that
the petitioner should have mentioned, she would not have subjected Angelica to the chemotherapy. [20]

The respondent Reynaldo Soliman was also presented to corroborate the testimony of his wife Lina Soliman. He
declared that he asked the petitioner about the side effects of chemotherapy and that the petitioner mentioned of only
"falling hair, weakness and vomiting" to him. [21]

During the trial, the respondents also presented two expert witnesses: Dr. Jesusa Vergara, a Medico-Legal Officer of the
PNP Crime Laboratory, and Dr. Melinda Balmaceda, a Medical Specialist employed at the Department of Health (DOH).
[22]
Dr. Vergara declared that she has been a physician since 1989; she did not undergo medical resident physician training
and only practiced as a general practitioner at Andamon General Hospital in Lucena City for six months. She testified
further that she has been employed as a Medico-Legal Officer at the PNP Crime Laboratory since January 1990. In this
capacity, she declared that she performs autopsy to determine the cause of death of victims; conducts examinations of
rape victims, victims of other sex crimes and physical injuries; examines and identifies skeletal remains; attends court
hearings on cases she has examined; and gives lectures to students and medico-legal opinion on cases referred to her.
[23]

Dr. Vergara testified that she conducted the autopsy on Angelica's body on September 2, 1993. She explained that the
extensive multiple organ hemorrhages and disseminated intravascular coagulation that caused Angelica's demise can be
attributed to the chemical agents given to her; these agents caused platelet reduction resulting in massive bleeding and,
eventually, in her death. She further noted that Angelica would have also died of osteosarcoma even with amputation
and chemotherapy; in this case, her death was not caused by osteosarcoma as it has a survival period of three years.
[24] Dr. Vergara admitted that she is not a pathologist; [25] also, her statements were based on the opinion of an
oncologist she had previously interviewed. [26]

Dr. Balmaceda, for her part, declared that she is a Medical Specialist working at the DOH Operations and Management
Service; her work encompasses the administration and management of medical hospitals; her office receives complaints
against hospitals for mismanagement of admissions and medical health. Dr. Balmaceda also stated that she obtained a
Masters of Hospital Administration from the Ateneo de Manila University, and took special courses on medical and
pediatric training at the Philippine General Hospital and Children's Medical Center in 1979. [27]

Dr. Balmaceda testified that it is a physician's duty to inform and explain to the patient or his family every known side
effect of the therapeutic agents to be administered, before securing their consent. She stressed that the patient or his
family must be informed of all known side effects based on studies and observations, even if this disclosure will have the
effect of aggravating the patient's condition. [28] On cross-examination, Dr. Balmaceda admitted that she is not an
oncologist. [29]

Despite their counsel's representation during the trial, the respondents failed to present expert testimony from an
oncologist or a physician who specializes in the diagnosis and treatment of cancers. [30]

d. The Petitioner's Supporting Expert Testimonies

The petitioner testified that she is a licensed physician and a board certified medical oncologist; she underwent sub-
specialty training in medical oncology where she dealt with different types of cancers, including bone cancers. She also
declared that she is a member of the Philippine Society of Medical Oncologists; has written and co-authored various
medical papers on cancer; and has attended yearly conventions of the American Society of Clinical Oncology and the
Philippine Society of Medical Oncologists where she was updated with the latest advances in cancer treatment and
management. The petitioner also declared that she has been engaged in the treatment and management of bone
cancers for almost thirteen years, and has seen more than 5,000 patients. [31]

On direct examination, the petitioner testified that she met and discussed the side effects of chemotherapy with the
respondents three times; she mentioned that the side effects of chemotherapy may consist of hair loss, nausea,
vomiting, sterility, and low white and red blood cells and platelet count. She declared that the respondents consented to
the chemotherapy when they signed the hospital's consent form. [32]

The petitioner also declared that Angelica died not because of the chemotherapy but because of sepsis - an
overwhelming infection that caused her organs to fail. She testified that the cancer brought on the sepsis because of her
poor defense mechanism. [33] On cross-examination, the petitioner clarified that the sepsis also triggered the platelet
reduction; the bleeding was, in fact, controlled by the blood transfusion but the infection was so prevalent it was hard to
control. The petitioner also added that the three drugs administered to Angelica could theoretically cause platelet
reduction, but a decrease in platelets is usually seen only after three cycles of chemotherapy and not in the initial
administration. [34]

Dr. Tamayo, the orthopedic surgeon who amputated Angelica's right leg, testified for the petitioner. He explained that
the modes of therapy for Angelica's cancer are the surgical removal of the primary source of the cancerous growth and,
subsequently, the treatment of the residual cancer (metastatic) cells with chemotherapy. [35] He further explained that
patients with osteosarcoma have a poor defense mechanism due to the cancer cells in the bloodstream. In Angelica's
case, he explained to the parents that chemotherapy was imperative to address metastasis of cancerous cells since
osteosarcoma is a very aggressive type of cancer requiring equally aggressive treatment. He declared that the mortality
rate for osteosarcoma remains at 80% to 90% despite the advent of modern chemotherapy. Finally, Dr. Tamayo testified
that he refers most of his cancer patients to the petitioner since he personally knows her to be a very competent
oncologist. [36]

III. The Ponencia

The ponencia cites two grounds for granting the petition. First, there was adequate disclosure of the side effects of
chemotherapy on the part of the petitioner. Second, the respondents failed to present expert testimony to establish the
standard of care in obtaining consent prior to chemotherapy.

a. Adequate Disclosure of Material Risks

The ponencia finds "that there was adequate disclosure of material risks inherent in the chemotherapy [administered]
with the consent of Angelica's parents." The ponencia emphasizes that when the petitioner informed the respondents of
the side effects of chemotherapy (i.e. low white and red blood cell and platelet count, kidney or heart damage and skin
darkening), it was reasonable for the former to expect that the latter understood very well the side effects are not be
the same for all patients undergoing the procedure. Given this scenario, the ponencia notes that the "respondents could
not have been unaware in the course of initial treatment... that [Angelica's] immune system was already weak on
account of the malignant tumor in her knee." The ponencia also implies that death as a result of complications of the
chemotherapy or the underlying cancer is a risk that can be reasonably inferred by the respondents from the general
side effects disclosed by the petitioner. Finally, the ponencia disregarded the respondents' claim that the petitioner
assured them of 95% chance of recovery for Angelica as it is unlikely for doctors (like the petitioner) who are dealing
with grave illnesses to falsely assure patients of the chemotherapy's success rate; at any rate, specific disclosures such as
statistical data are not legally necessary. [37]

b. Failure to Present Expert Testimony

The ponencia holds that in a medical malpractice action based on lack of informed consent, the plaintiff must prove both
the duty to disclose material risks and the breach of that duty through expert testimony. The expert testimony must
show the customary standard of care of physicians in the same practice as that of the defendant doctor. In the present
case, the ponencia notes that Dr. Balmaceda's expert testimony is not competent to establish the standard of care in
obtaining consent for chemotherapy treatment. [38]

IV. The Doctrine of Informed Consent

The present case is one of first impression in this jurisdiction in the application of the doctrine of informed consent in a
medical negligence case. For a deeper appreciation of the application of this novel doctrine, a brief look at the historical
context, the different approaches underlying informed consent, and the standards of disclosure would be very helpful.
a. Battery v. Negligence Approaches

The doctrine of informed consent first appeared in American jurisprudence in cases involving unconsented surgeries
which fit the analytical framework of traditional battery. [39] Most commentators begin their discussions of the legal
doctrine of informed consent with the "famous 1914 opinion of Associate Justice Benjamin Cardozo in Schloendorff v.
Society of New York Hospitals" [40] where he wrote:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a
surgeon who performs an operation without the patient's consent commits an assault, for which he is liable in damages.
This is true, except in cases of medical emergency, where the patient is unconscious, and where it is necessary to
operate before consent can be obtained. [41]

Scholendorff is significant because it "characterized the wrong [committed by the physician] as a trespass, and not [as] a
negligent act." It illustrated the concept of medical battery "[where] a patient is subjected to an examination or
treatment without express or implied consent." Thus, "[this] battery approach to informed consent seeks to protect the
patient's physical integrity and personal dignity from harmful and unwanted contact." [42]

"[A]s the century progressed and the practice of medicine became more sophisticated, courts began to consider
whether the patient had been given sufficient information to give true consent." [43] One commentator notes that in
the mid-1950s, the courts had shifted their focus from the issue of whether the patient gave consent, to whether
adequate information was given for the patient to have made an informed consent. Thus, the quantity of information
provided to the patient in making decisions regarding medical treatment was given greater scrutiny and the physician's
duty to disclose assumed a primary role. [44]

The 1957 case of Salgo v. Leland Stanford Jr. University of Board of Trustees [45]first "established the modern view of
the doctrine of informed consent," declaring "that the physician violates his duty to his patient if he fails to provide
information necessary for the patient to form intelligent consent to the proposed treatment." [46] Although Salgo held
that the physician was under a duty to disclose, this duty remained unclear; it did not answer the critical question of
"what constituted `full disclosure' sufficient for the patient to make an informed consent." [47]

In the 1960s, "[c]ourts and commentators began to understand [and realize] that actions for battery - an intentional tort
- made little sense when couched in negligence terminology." [48] Thus, in 1960, the Kansas Supreme Court explicitly
rejected the battery approach in Natanson v. Kline [49] where it held that the "failure to disclose to the patient sufficient
information to allow informed consent to the procedure was an action based in negligence and not on an unconsented x
x x touching [or] battery." [50] The courts in Natanson v. Kline [51] and Mitchell v. Robinson [52] clarified as well the
scope of the physician's duty to disclose and held that the "central information needed in making an informed consent
was a disclosure of the material risks involved in a medical procedure." [53] Natanson went on to require the physician
to provide "in addition to risk information, disclosure of the ailment, the nature of the proposed treatment, the
probability of success, and possible alternative treatments." [54]

Finally, in 1972, the California Supreme Court in Cobbs v. Grant [55] articulated "the rationale behind abandoning the
battery approach to informed consent in favor of [a] negligence approach." It held that "it was inappropriate to use
intentional tort of battery when the actual wrong was an omission, and the physician acted without intent to injure the
patient." [56]

b. Standards of Disclosure: Professional Disclosure

Standard v. Reasonable Patient Standard

A significant development in the evolution of the doctrine of informed consent in the United States is the standard by
which the adequacy of disclosure is judged. [57] In Natanson, [58] the Court examined the adequacy of the physician's
disclosure by looking at accepted medical practices and held that a charge of failure to disclose should be judged by the
standards of the reasonable medical practitioner. This came to be known as the "professional disclosure standard." [59]
The question under the standard is: did the doctor disclose the information that, by established medical practice, is
required to be disclosed? Under this standard, "a patient claiming a breach of the duty was required to produce expert
medical testimony as to what the standard practice would be in [the medical community in a particular case] and how
the physician deviated from the practice." [60] This requirement, however, came under harsh criticism as one
commentator noted:

The fulfillment of this requirement often precluded a finding of liability not only because of the difficulty in obtaining
expert testimony, and breaking through the medical community's so-called "conspiracy of silence," but also because
there was no real community standard of disclosure. Establishing community custom through expert testimony is
perfectly acceptable where such custom exists. However, because a physician supposedly considers his patient's
emotional, mental, and physical condition in deciding whether to disclose, and because each patient is mentally and
emotionally unique, there can be no single established custom concerning disclosure; if there is one, it is so general that
it is of little value. Requiring the plaintiff to present expert testimony that a standard does exist and was breached may
well impose an insuperable burden. [61]

In the early 1970s, the courts and legislature in the United States realized that "the professional community standard of
disclosure was inconsistent with patients' rights to make their own health care decisions." [62] In 1972, a new standard
was established in the landmark case of Canterbury v. Spence. [63] This standard later became known as the
"reasonable patient standard." It required the doctor "to disclose all material risks incident to the proposed therapy in
order to secure an informed consent," [64] and gave rise to a new disclosure test: "the test for determining whether a
particular peril must be divulged is its materiality to the patient's decision: all risks potentially affecting the decision
must be unmasked." [65] Under this standard, adequate disclosure "required the physician to discuss the nature of the
proposed treatment, whether it was necessary or merely elective, the risks, and the available alternatives and their risks
and benefits." [66]

The Canterbury court, however, warned that the standard does not mean "full disclosure" of all known risks. One
commentator emphasized: [67]

Thus, the reasonable patient standard included more information than a professional community standard, but did not
require the doctor to tell the patient all information about risks, benefits, alternatives, diagnosis, and the nature of the
treatment. To do so would require the patient first to undergo complete medical training himself. "The patient's interest
in information does not extend to a lengthy polysyllabic discourse on all possible complications. A mini-course in medical
science is not required...." [emphasis supplied]

In Sard v. Hardy, [68] the Maryland Court of Appeals succinctly explained the rationale in adopting the reasonable
patient standard first established in Cantebury v. Spence, [69] as follows:

In recent years, however, an ever-expanding number of courts have declined to apply a professional standard of care in
informed consent cases, employing instead a general or lay standard of reasonableness set by law and independent of
medical custom. These decisions recognize that protection of the patient's fundamental right of physical self-
determination the very cornerstone of the informed consent doctrine mandates that the scope of a physician's duty to
disclose therapeutic risks and alternatives be governed by the patient's informational needs. Thus, the appropriate test
is not what the physician in the exercise of his medical judgment thinks a patient should know before acquiescing in a
proposed course of treatment; rather, the focus is on what data the patient requires in order to make an intelligent
decision.[Citations omitted]

Since then, this line of ruling has prevailed, as shown by the rulings discussed below on the need for expert evidence in
the application of the preferred reasonable patient standard.

c. Expert Testimony in Ordinary Medical Negligence Cases

Philippine jurisprudence tells us that expert testimony is crucial, if not determinative of a physician's liability in a medical
negligence case. [70] In litigations involving medical negligence as in any civil action, we have consistently ruled that the
burden to prove by preponderance of evidence the essential elements - i.e., duty, breach, injury and proximate
causation - rests with the plaintiff. Expert testimony is, therefore, essential since the factual issue of whether a physician
or surgeon exercised the requisite degree of skill and care in the treatment of his patient is generally a matter of expert
opinion. [71]

Cruz v. Court of Appeals, [72] a 1997 case, provided the first instance for the Court to elaborate on the crucial
significance of expert testimony to show that a physician fell below the requisite standard of care. In acquitting the
petitioner of the crime of reckless imprudence resulting in homicide because of a complete absence of any expert
testimony of the matter of the standard of care employed by other physicians of good standing in the conduct of similar
operations, the Court emphasized:

In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et al., this Court stated that in accepting a case, a doctor
in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the
same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the
standard of care of the profession but also that the physician's conduct in the treatment and care falls below such
standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the
light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion
as to causation.

x x x The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter
possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert
testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of
conduct falling below the standard of care employed by other physicians in good standing when performing the same
operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there
is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is
rebuttable by expert opinion which is so sadly lacking in the case at bench. [Emphasis supplied]

Ramos v. Court of Appeals [73] meanwhile illustrates that in cases where the doctrine of res ipsa loquitur [74] is
applicable, the requirement for expert testimony may be dispensed with. Thus, in finding that the respondent was
negligent in the administration of anesthesia on the basis of the testimony of a dean of a nursing school and not of an
anesthesiologist, the Court held:

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she
can very well 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 one.This is precisely allowed
under the doctrine ofres ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule
that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary
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 unnecessary.We take judicial notice of the fact that anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube
was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable. [75]

d. The Limited but Critical Role of Expert

Testimony in Informed Consent Litigation

One of the major and fiercely contested issues in the growing number of informed consent cases in the United States is
"whether it is necessary for the plaintiff to produce expert medical testimony to establish the existence and scope of a
physician's duty to disclose risks of a proposed treatment." [76] A majority of legal commentators on the subject agree
that "most courts will continue to require expert testimony to establish the existence and extent of a physician's duty to
disclose risks of a proposed treatment, in view of the rule that expert testimony usually is necessary in medical
malpractice cases generally." [77]

In informed consent cases (unlike in ordinary medical negligence cases), however, many issues do not necessarily
involve medical science. In the landmark case of Canterbury v. Spence, [78] the United States Court of Appeals for the
District Columbia Circuit defined the limited role of expert testimony in informed consent cases and provided examples
of situations appropriate for non-expert testimony:

There are obviously important roles for medical testimony in such cases, and some roles which only medical evidence
can fill. Experts are ordinarily indispensible to identify and elucidate for the fact finder the risks of therapy and the
consequences of leaving existing maladies untreated. They are normally needed on issues as to the cause of any injury
or disability suffered by the patient and, where privileges are asserted, as to the existence of any emergency claimed
and the nature and seriousness of any impact upon the patient from risk-disclosure. Save for relative infrequent
instances where questions of this type are resolvable wholly within the realm of ordinary human knowledge and
experience, the need for the expert is clear.

The guiding consideration our decisions distill, however, is that medical facts are for medical experts and other facts are
for any witnesses-expert or not-having sufficient knowledge and capacity to testify to them. It is evident that many of
the issues typically involved in nondisclosure cases do not reside peculiarly within the medical domain. Lay witness
testimony can competently establish a physician's failure to disclose particular risk information, the patient's lack of
knowledge of the risk, and the adverse consequences following the treatment. Experts are unnecessary to a showing of
the materiality of a risk to a patient's decision on treatment, or to the reasonably, expectable effect of risk disclosure on
the decision. These conspicuous examples of permissible uses of nonexpert testimony illustrate the relative freedom of
broad areas of the legal problem of risk nondisclosure from the demands for expert testimony that shackle plaintiffs'
other types of medical malpractice litigation. [Citations omitted; emphasis supplied]

This ruling underwent refinements in subsequent applications. The 1983 case of Smith v. Shannon, [79] - where the
Supreme Court of Washington held that an expert testimony is required to establish initially the existence of the risk of
the proposed treatment - is particularly instructive in its two-step discussion in the use of expert testimony in the
application of the reasonable patient test. To quote from this case:

The determination of materiality is a 2-step process. Initially, the scientific nature of the risk must be ascertained, i.e.,
the nature of the harm which may result and the probability of its occurrence. The trier of fact must then decide
whether that probability of that type of harm is a risk which a reasonable patient would consider in deciding on
treatment.

While the second step of this determination of materiality clearly does not require expert testimony, the first step
almost as clearly does. Only a physician (or other qualified expert) is capable of judging what risks exist and their
likelihood of occurrence. The central reason for requiring physicians to disclose risks to their patients is that patients are
unable to recognize the risks by themselves. Just as patients require disclosure of risks by their physicians to give an
informed consent, a trier of fact requires description of risks by an expert to make an informed decision.

Some expert testimony is thus necessary to prove materiality. Specifically, expert testimony is necessary to prove the
existence of a risk, its likelihood of occurrence, and the type of harm in question. Once those facts are shown, expert
testimony is unnecessary. [Citations omitted, emphasis supplied]

In Jambazian v. Borden, [80] a 1994 case, the California Court of Appeals held that in proving his informed consent claim,
the plaintiff was required "to present properly qualified medical opinion evidence that his alleged diabetic condition
created surgical risks other than those related by defendant prior to the procedure." The Court held further:
In every case the court must be guided by the general rules governing the use of expert testimony. If the fact sought to
be proved is one within the general knowledge of laymen, expert testimony is not required; otherwise the fact can be
proved only by the opinions of experts." The diagnosis of diabetes, its magnitude, scientific characteristics, and the
inherent risks associated with the condition are not matters of such common knowledge that opinion testimony is
unnecessary in informed consent litigation to establish defendant should have disclosed the risks of surgery on a
diabetic to plaintiff when there is no medical evidence that the illness exists.[Citations omitted.]

Betterton v. Leichtling, [81] another California Court of Appeals ruling, distinguished "between the use of expert
testimony to prove the duty to disclose a known risk and the use of expert testimony to prove the existence of the risk
itself" [82] and held that the effect of Betterton's aspirin use on the risk of surgical complications is subject to proof only
by expert witnesses, viz:

Whether to disclose a significant risk is not a matter reserved for expert opinion. Whether a particular risk exists,
however, may be a matter beyond the knowledge of lay witnesses, and therefore appropriate for determination based
on the testimony of experts. Here, the effect of Betterton's aspirin use on the risk of surgical complications was a subject
beyond the general knowledge of lay people. Therefore, the jury should have relied only on expert testimony when it
determined whether the use of aspirin causes significant risks in surgery. [Citations omitted, emphasis supplied]

In Morhaim v. Scripps Clinic Medical Group, Inc. [83] that followed, the Court dismissed Morhaim's informed consent
claim based on his failure to present expert testimony that diabetes is a risk of the Kenalog injections. The California
Court of Appeals held:

Betterton and Jambazian make clear that while no expert testimony is required to establish a doctor's duty to disclose a
"known risk of death or serious bodily harm," expert testimony is required to establish whether a risk exists in the first
instance where the matter is beyond the knowledge of a lay person.

In this case, whether diabetes is a risk of the Kenalog injections Morhaim received is clearly a matter beyond the
knowledge of a layperson. Therefore, Morhaim would have to present expert testimony regarding the existence of that
risk in order to prevail on his informed consent claim. Once Morhaim's counsel conceded in his opening statement that
Morhaim could not present such testimony, the trial court properly granted Scripps's motion for nonsuit.

All these, Canterbury v. Spence[84] best summed up when it observed that "medical facts are for medical experts and
other facts are for any witness - expert or not - having sufficient knowledge and capacity to testify to them." [85]

V. Application to the Present Case

The issue in the present case is: Did the respondents prove by preponderance of evidence all the elements of a cause of
action for medical negligence under the doctrine of informed consent?

As stated above, the plaintiff - as in any ordinary medical negligence action - bears the burden of proving the necessary
elements of his or her cause of action. Canterbury v. Spence [86] tells us that informed consent plaintiffs also share this
burden, viz:

In the context of trial of a suit claiming inadequate disclosure of risk information by a physician, the patient has the
burden of going forward with evidence tending to establish prima facie the essential elements of the cause of action,
and ultimately the burden of proof - the risk of nonpersuasion - on those elements. These are normal impositions upon
moving litigants, and no reason why they should not attach in nondisclosure cases is apparent. [Citations omitted.]

In the present case, I find that the plaintiffs (the present respondents) utterly failed to establish their cause of action.
They failed to establish their claim of lack of informed consent, particularly on the first and fourth elements.
a. First Element: Duty to Disclose Material Risks

As discussed, two competing standards are available to determine the scope and adequacy of a physician's disclosure -
the professional disclosure standard or the reasonable patient standard.

While I concur with the results of the ponencia, I find its approach and reasoning in its use of the standards to be
confused. The ponencia claims that "expert testimony must show the customary standard of care of physicians in the
same practice as that of the defendant doctor," [87] thereby indicating its partiality to the use of the professional
disclosure standard. At the same time, the ponencia felt "hesitant in defining the scope of mandatory disclosure in cases
based on lack of informed consent, much less set a standard of disclosure," [88] citing lack of expert testimony in this
regard. In plainer terms, it effectively said that the respondents failed to prove what must be disclosed. Yet, it also
concluded that "there was adequate disclosure of material risks inherent in the chemotherapy procedure performed
with the consent of Angelica's parents." [89]

After considering the American experience in informed consent cases, I opt to use the reasonable patient standard
which focuses "on the informational needs of an average reasonable patient, rather than on professionally-established
norms." [90] In the doctor-patient relationship, it is the patient who is subjected to medical intervention and who gets
well or suffers as a result of this intervention. It is thus for the patient to decide what type of medical intervention he
would accept or reject; it is his or her health and life that are on the line. To arrive at a reasonable decision, the patient
must have sufficient advice and information; this is the reason he or she consults a doctor, while the role of the doctor is
to provide the medical advice and services the patient asks for or chooses after informed consideration. [91]

In this kind of relationship, the doctor carries the obligation to determine and disclose all the risks and probabilities that
will assist the patient in arriving at a decision on whether to accept the doctor's advice or recommended intervention.
[92] While the disclosure need not be an encyclopedic statement bearing on the patient's illness or condition, the doctor
must disclose enough information to reasonably allow the patient to decide.

In an informed consent litigation, American experiences documented through the decided cases, as well as our own
common empirical knowledge and limited line of cases on medical negligence, tell us that at least the testimony on the
determination of the attendant risks and the probabilities of the proposed treatment or procedure is a matter for a
medical expert, not for a layperson, to provide. This is generally the first of the two-step process that Smith v. Shannon,
cited above, speaks of [93] in describing the reasonable patient standard and its application.

The second step relates to testimony on the determination of the adequacy of the disclosure based on the materiality of
the disclosed information to the patient's decision-making. In this regard, Canterbury v. Spence [94] again offers some
help when it states:

Once the circumstances give rise to a duty on the physician's part to inform his patient, the next inquiry is the scope of
the disclosure the physician is legally obliged to make. The courts have frequently confronted this problem but no
uniform standard defining the adequacy of the divulgence emerges from the decisions. Some have said "full" disclosure,
a norm we are unwilling to adopt literally. It seems obviously prohibitive and unrealistic to expect physicians to discuss
with their patients every risk of proposed treatment - no matter how small or remote - and generally unnecessary from
the patient's viewpoint as well. Indeed, the cases speaking in terms of "full" disclosure appear to envision something less
than total disclosure, leaving unanswered the question of just how much. [95]

To my mind, the scope that this ruling describes, while not given with mathematical precision, is still a good rule to keep
in mind in balancing the interests of the physician and the patient; the disclosure is not total by reason of practicality,
but must be adequate to be a reasonable basis for an informed decision. For this aspect of the process, non-expert
testimony may be used on non-technical detail so that the testimony may dwell on "a physician's failure to disclose risk
information, the patient's lack of knowledge of the risk, and adverse consequences following the treatment." [96]
In the present case, expert testimony is required in determining the risks and or side effects of chemotherapy that the
attending physician should have considered and disclosed as these are clearly beyond the knowledge of a layperson to
testify on. In other words, to prevail in their claim of lack of informed consent, the respondents must present expert
supporting testimony to establish the scope of what should be disclosed and the significant risks attendant to
chemotherapy that the petitioner should have considered and disclosed; the determination of the scope of disclosure,
and the risks and their probability are matters a medical expert must determine and testify on since these are beyond
the knowledge of laypersons. [97]

As expert witness, the respondents presented Dr. Balmaceda who testified on the physician's general duty to explain to
the patient or to his relatives all the known side effects of the medical procedure or treatment. Specifically, Dr.
Balmaceda gave the following expert opinion:

ATTY. NEPOMUCENO

Q: Madam Witness, what is the standard operating procedure before a patient can be subjected to procedures like
surgery or administration of chemotheraphic (sic) drugs?

A: Generally, every physician base (sic) her or his assurance on the patient, on the mode of recovery by her or his
personal assessment of the patient's condition and his knowledge of the general effects of the agent or procedure that
will be allowed to the patient.

Q: What is the duty of the physician in explaining the side effects of medicines to the patient?

A: Every known side effects of the procedure or the therapeutic agents should really be explained to the relatives of the
patient if not the patient.

Q: Right, what could be the extent of the side effect to the patient?

A: I said, all known side effects based on studies and observations.

Q: Should be?

A: Made known to the relatives of the patient or the patient.

Q: Then, after informing the relatives of the patient about [all the] side effects, what should be the next procedure?

WITNESS

A: The physician should secure consent from the relatives or the patient himself for the procedure for the administration
of the procedure, the therapeutic agents.

ATTY. NEPOMUCENO
Q: Now, should the physician ask the patient's relatives whether they under[stood] the explanation?

A: Yes, generally, they (sic) should. [98]

On cross-examination, Dr. Balmaceda only clarified that all known side-effects of the treatment, including those that
may aggravate the patient's condition, should be disclosed, viz:

ATTY. CASTRO

Q: And you mentioned a while ago, Madam Witness that all known side effects of drugs should be made known to the
patient to the extent that even he dies because of making known the side effect, you will tell him?

A: I said, all known side effect[s] should be made known to the relatives or to the patient so that consent and the
responsibility there lies on the patient and the patient's relatives.

Q: So, even that information will aggravate his present condition?

A: Making known the side effect?

A: Yes.

A: In my practice, I did not encounter any case that will aggravate it. I make him know of the side effect[s] and if indeed
there is, I think the person that should approve on this matter should be the relatives and not the patient. It is always
the patient that become (sic) aggravated of the side effects of the procedure in my experience. [99]

Unfortunately for the respondents, Dr. Balmaceda's testimony failed to establish the existence of the risks or side-effects
the petitioner should have disclosed to them in the use of chemotherapy in the treatment of osteosarcoma; the witness,
although a medical doctor, could not have testified as an expert on these points for the simple reason that she is not an
oncologist nor a qualified expert on the diagnosis and treatment of cancers. [100] Neither is she a pharmacologist who
can properly advance an opinion on the toxic side effects of chemotherapy, particularly the effects of Cisplatin,
Doxorubicin and Cosmegen - the drugs administered to Angelica. As a doctor whose specialty encompasses hospital
management and administration, she is no different from a layperson for purposes of testifying on the risks and
probabilities that arise from chemotherapy.

In the analogous case of Ramos v. Court of Appeals [101] that dwelt on the medical expertise of a witness, we held that
a pulmonologist cannot be considered an expert in the field of anesthesiology simply because he is not an
anesthesiologist:

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could
not therefore properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the pharmacologic and toxic
effects of the supposed culprit, Thiopental Sodium (Pentothal).

...
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.

...

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.Clearly, Dr.
Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill,
and training in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field,
private respondents intentionally avoided providing testimony by competent and independent experts in the proper
areas. [102]

At best, Dr. Balmaceda's testimony only established generally the petitioner's duty to disclose all the known risks of the
proposed treatment and nothing more. Even if this testimony is deemed competent, its probative value - on the risks
attendant to chemotherapy and the probabilities that the attending chemotherapy specialist should have considered
and disclosed to the patient and her parents - cannot but be negligible for lack of the required capability to speak on the
subject of the testimony.

In this regard, Justice Carpio proffers the view that the petitioner "as an expert in oncology identified [in the present
case] the material risks and side effects of chemotherapy." [103] To support his conclusion, Justice Carpio cites
jurisprudence which allowed the use of the defendant-physician's expert testimony to prove the medical disclosure
standard in the community. [104] I cannot subscribe to this point of view.

Arguably, the medical disclosure standard can be established through the petitioner's own expert testimony, as has
been done in some courts in the United States in cases where the defendant physician testified that he did disclose the
risks, but the plaintiff denied it. [105] In these cases, the defendant physicians are qualified as expert witnesses and their
testimonies are considered expert medical testimony insofar as they disclose the practice of competent and responsible
medical practitioners in a particular medical situation. [106]

Reliance on this line of cases for purposes of the present case is however, inapt.

First, these cases are appropriate only if we are to adopt the professional disclosure or the "physician standard" - a
standard that Justice Carpio himself admits "is not the modern and prevailing standard among United States courts."
Citing Cantebury v. Spence, [107] Justice Carpio declares that the "prevailing trend among courts is to use the patient
standard of materiality." As held in Febud v. Barot: [108]

Sufficiency of disclosure under the prudent patient standard requires that disclosure be viewed through the mind of
[the] patient, not [the] physician. Implicit in this shift of emphasis is recognition that expert testimony is no longer
required in order to establish the medical community's standard for disclosure and whether the physician failed to meet
that standard.

Second, this line of cases also cannot apply to the present case since the petitioner's testimony, on its own, did not
establish the medical standard in obtaining consent for chemotherapy treatment. Stated differently, the petitioner's
testimony did not specifically refer to the prevailing medical practice insofar as what risks or side-effects of
chemotherapy should be disclosed to the respondents. In fact, during the trial, the respondents failed to elicit any
expert testimony from the petitioner regarding the recognized standard of care in the medical community about what
risks of chemotherapy should have been disclosed to them.

b. Second Element: Adequacy of Disclosure of Risks

The ponencia concludes that "there was adequate disclosure of material risks of the [chemotherapy administered] with
the consent of Angelica's parents" in view of the fact that the petitioner informed the respondents of the side effects of
chemotherapy, such as low white and red blood cell and platelet count, kidney or heart damage and skin darkening.

I cannot agree with this conclusion because it was made without the requisite premises. As heretofore discussed,
sufficiency of disclosure can be made only after a determination and assessment of risks have been made. As discussed
above, no evidence exists showing that these premises have been properly laid and proven. Hence, for lack of basis, no
conclusion can be made on whether sufficient disclosure followed. In other words, the disclosure cannot be said to be
sufficient in the absence of evidence of what, in the first place, should be disclosed.

Even assuming that the ponencia used the professional disclosure standard in considering the material risks to be
disclosed, the existing evidence still does not support the conclusion arrived at. The reason again is the respondent's
failure to establish a baseline to determine adequacy of disclosure; in the case of the professional disclosure standard,
determination of adequacy requires expert medical testimony on the standard medical practice that prevails in the
community. Thus, it has been held that "[e]xpert testimony is required in an informed consent case to establish what the
practice is in the general community with respect to disclosure of risks that the defendant physician allegedly failed to
disclose." [109]

Lastly, the respondent Lina Soliman's testimony on this point bears close examination in light of the totality of the
evidence adduced. A first consideration is the nature of the illness of the deceased - osteosarcoma - that according to
the undisputed expert testimony of Dr. Tamayo is a "very aggressive type of cancer that requires adjuvant
chemotherapy." In plainer terms, the amputation of Angelica's right leg was not sufficient, chemotherapy must follow;
despite modern chemotherapy, the mortality rate of osteosarcoma is 80 to 90%. [110] In light of this expert testimony,
the respondent Lina Soliman's testimony that she was assured of a 95% chance of healing (should Angelica undergo
chemotherapy) by the petitioner cannot be accepted at face value.

A second consideration is that the claim of a 95% chance of healing cannot also be given any credence considering the
respondent Lina Soliman's inconsistent testimony on this point. In fact, the record bears out that the respondent Lina
Soliman testified on direct examination that the petitioner assured her of a 95% chance of healing. However, she
contradicted her earlier testimony, when on rebuttal, she declared that the petitioner gave her a 90% guarantee of full
recovery should Angelica undergo chemotherapy.

A third consideration is that specific disclosures such as life expectancy probabilities" [111] are not legally necessary or
"required to be disclosed in informed consent situations," [112] thus the respondent Lina Soliman's testimony on this
point cannot be given any probative value. Thus, in the landmark case of Arato v. Avedon [113] - where family members
of a patient who died of pancreatic cancer brought an informed consent action against defendant physicians who failed
to provide the patient material information (statistical life expectancy) necessary for his informed consent to undergo
chemotherapy and radiation treatment [114] - the Supreme Court of California "rejected the mandatory disclosure of
life expectancy probabilities" [115] on account "of the variations among doctor-patient interactions and the intimacy of
the relationship itself." [116]

Likewise, the statement that the side effects were confined to hair loss, vomiting and weakness can hardly be given full
credit, given the petitioner's own testimony of what she actually disclosed. Respondent Lina Soliman's testimony, tailor-
fitted as it is to an informed consent issue, should alert the Court to its unreliability. Even if given in good faith, it should,
at best reflect what the respondents heard (or chose to hear), not what the petitioner disclosed to them - a common
enough phenomenon in high-stress situations where denial of an unacceptable consequence is a first natural response.
That death may occur is a given in an osteosarcoma case where the most drastic intervention - amputation - has been
made. That death was not proximately caused by the chemotherapy (as testified to by experts and as discussed below)
demonstrates its particular relevance as a consequence that the doctor administering the chemotherapy must disclose.

c. Fourth Element: Causation

In addition to the failure to prove the first element, I also submit that the respondents failed to prove that the
chemotherapy administered by the petitioner proximately caused the death of Angelica Soliman.

Traditionally, plaintiffs alleging lack of informed consent must show two types of causation: 1) adequate disclosure
would have caused the plaintiff to decline the treatment, and 2) the treatment proximately caused injury to the plaintiff.
The second causation requirement is critical since a medical procedure performed without informed consent does not,
in itself, proximately cause an actionable injury to a plaintiff; a plaintiff must show that he or she has suffered some
injury as a result of the undisclosed risk to present a complete cause of action. [117]

In the recent case of Gorney v. Meaney, [118] the Arizona Court of Appeals held that expert testimony is essential to
demonstrate that the treatment proximately caused the injury to the plaintiff, viz:

Expert testimony is not required for the first type of causation because it is plainly a matter to which plaintiffs
themselves could testify and is within the knowledge of the average layperson.

Expert testimony is required, however, to demonstrate that the treatment proximately caused injury to the plaintiff.
Such testimony helps to ensure that the plaintiff's alleged injury was not caused by the progression of a pre-existing
condition or was the result of some other cause, such as natural aging or a subsequent injury x x x. Thus, Gorney's expert
opinion affidavit should have stated that the surgery proximately caused an injury to Gorney, e.g., the "worsen[ed]"
condition in Gorney's knee. [Citations omitted, emphasis supplied]

In the present case, respondent Lina Soliman's lay testimony at best only satisfied the first type of causation - that
adequate disclosure by the petitioner of all the side effects of chemotherapy would have caused them to decline
treatment. The respondents in this case must still show by competent expert testimony that the chemotherapy
administered by the petitioner proximately caused Angelica's death.

In this regard, the respondents presented Dr. Vergara as an expert witness, who gave the following opinion:

ATTY. NEPOMUCENO

Q: Under the word conclusions are contained the following words: "Cause of death is hypovolemic shock secondary to
multiple organ hemorrhages and disseminated Intravascular Coagulation," in layman's term, what is the meaning of
that?

WITNESS

A: The victim died of hemorrhages in different organs and disseminated intravascular coagulation is just a complication.

ATTY. NEPOMUCENO
Q: Madam Witness, what could have caused this organ hemorrhages and disseminated intravascular coagulation?

A: The only thing I could think of, sir, was the drugs given to the victim, the chemical agents or this anti-plastic drugs can
cause x x x the reduction in the platelet counts and this could be the only cause of the bleeding.

Q: And that bleeding could have been sufficient to cause the death of Angelica Soliman?

A: Yes, Sir. [119]

On cross-examination, Dr. Vergara admitted that the opinions she advanced to the court were not based on her opinion
as an expert witness but on the interview she had previously conducted with an oncologist, viz:

ATTY. CASTRO

Q: Now, you mentioned chemotherapy, Madam Witness, that it is not a treatment really, are you initiating that?

A: Sir, I asked for an opinion from an Oncologist, and she said that only one person really survived the 5-year survival
rate. Only one person.

Q: That is, are you referring to malignant osteosarcoma?

A: Yes, sir. [120]

...

ATTY. AYSON

Q: Madam Witness, you said a while ago that you are not a pathologist?

A: Yes, sir.

Q: And during the cross-examination and the re-direct, you admitted that you have had to refer or interview an
oncologist?

A: Yes, sir.

Q: What is an oncologist Madam?

A: She is a doctor in cancers.

Q: So, whatever opinion you have stated before this Honorable Court [is] based on the statement made by the
oncologist you have interviewed?

A: Only for the disease osteosarcoma.

...

COURT

Q: So then, the opinion you gave us that the patient afflicted with cancer of the bone, osteosarcoma that she will live for
5 years is not of your own opinion but that of the oncologist?

A: Yes, your Honor, but that 5 years survival is only for patients undergoing chemotherapy but actually it is less than 5
years.

Q: You mean to tell the Court Mrs. Witness that the patient has been diagnosed [with] cancer, may still have a life span
of five (5) years after examination having been found to have cancer?

A: No, sir. Less than five (5) years.

Q: In this particular case, what was the information given you by the Oncologist you consulted?

A: Only one person lived after she was given chemotherapy, five years sir.

Q: In this particular case, the Oncologist you consulted also told you that the patient Soliman did not die of cancer but
died of complication, is that correct?

A: Yes, sir.

Q: So, it was not actually your own observation?

A: Sir, considering my findings at the body or the different organs, of the victim, I have said I found hemorrhages, so I
think that is enough to have caused the death of the victim. [121]

Under these terms, Dr. Vergara's expert testimony was clearly incompetent to prove that the chemotherapy proximately
caused Angelica's demise for two reasons.

First, Dr. Vergara, who is an autopsy expert, is not qualified to be an expert witness in an osteosarcoma case involving
chemotherapy. Her admission that she consulted an oncologist prior to her testimony in court confirms this. Dr. Vergara
is also not a pharmacologist who can competently give expert opinion on the factual issue of whether the toxic nature of
the chemotherapy proximately caused Angelica's death. As previously stated, the respondents failed to present
competent experts in the field of oncology despite their representation to do so during trial.
Second, Dr. Vergara's testimony is doubly incompetent as it is hearsay; her opinions were not based on her own
knowledge but based on the opinion of another oncologist she previously interviewed.

Additionally, I cannot help but note that Dr. Vergara could not have adequately testified regarding the medical condition
and the cause of death of Angelica without referring to her medical records. As the records of the case show, these
medical records were never introduced into evidence by either party to the case. The absence of these medical records
significantly lessened the probative value of Dr. Vergara's testimony regarding the causation of Angelica's death.

Thus, in the absence of competent evidence that the chemotherapy proximately caused Angelica's death, what stands in
the record in this case is the petitioner's uncontroverted and competent expert testimony that Angelica died of sepsis
brought about by the progression of her osteosarcoma - an aggressive and deadly type of bone cancer. That the
petitioner is a competent expert witness cannot be questioned since she was properly qualified to be an expert in
medical oncology.

In this respect, the petitioner - who is a board certified medical oncologist with thirteen (13) years of experience in the
treatment of osteosarcoma - testified that Angelica died of sepsis, viz:

Q: Now, despite all these medications, the patient has been deceased on September 1, 1993, what do you think can be
the cause of x x x death of the patient?

A: This is probably the cause of death[-]overwhelming infection that has gone through her body that has also caused her
other organs or systems to fail and this is also because of poor defense mechanism brought about from the cancer per
se. [122]

On cross-examination, the petitioner rebutted the respondents' theory that the chemotherapy caused platelet reduction
and the massive bleeding that ultimately caused Angelica's death, viz:

Q: Would you agree with me if I say that the platelet reduction triggered a chain of physiological pathological
mechanism in the body of Angelica Soliman which eventually triggered her death?

A: No, sir.

Q: Why not?

A: Because the platelet decrease was not the main cause of death of Angelica Soliman, it was an overwhelming infection
which also triggered the reduction of platelets.

Q: So, which came ahead, the overwhelming infection or the platelet reduction?

A: The infection, sir.

Q: And you said overwhelming?

A: Because we were talking about the death.

Q: No, no, no. You said that the infection that attacked Angelica Soliman was overwhelming, will you define what you
mean by overwhelming?

A: Overwhelming is a condition wherein the infection has already gone to other parts of the body and caused the
decrease in the function of the organs and systems.

...

Q: And you are saying that the platelet reduction eventually led to the bleeding and the bleeding led to the death?

A: No, sir.

Q: Why not?

A: Because we were able to control the bleeding of Angelica Soliman because of the transfusion that we were giving her
with platelets. We were able to stall the bleeding but the infection was there and it was the infection that was hard to
control.

...

Q: Now, would I be correct if I say that any or all of these three drugs could cause the platelet reduction in the body of
Angelica Soliman?

A: Theoretically, yes, sir.

Q: Practically, what do you mean?

A: Practically, we see usually a decrease in platelets, usually after three cycles of chemotherapy but not on the initial
chemotherapy. In the initial chemotherapy the usual blood elements which is decreased is in the white cells of the body.
[123]

Q: Alright, at what point and time did it ever occur to your mind that said infection would develop into sepsis?

A: I think it changed the following day.

Q: It was the fifth day already?

A: Yes, sir.

Q: And you changed [the] antibiotic?

A: [I] changed it into something stronger, sir.

Q: What transpired?

A: She was given Fortum intravenously.

...

Q: By sepsis, meaning that the germs, the bacteria were already in the blood system, is that correct?

A: Yes, beginning.

...

Q: What about Fortum did it take effect?

A: No, sir.

Q: Why not?

A: The patient has been going down ever since and the white cells were down for it was not enough to control the
infection because there was nothing in her body to fight and help Fortum fight the infection, that is why, we also add
(sic) another medicine that would increase her white cell count called Leucomax.

Q: And did Leucomax help?

A: No, sir. [124]

Q: Of the 500 patients, you said you treated before, how may developed sepsis?

A: I will say 1/5 developed sepsis.

Q: And of the 1/5 that developed sepsis before Angelica Soliman, how many died?

A: Seventy percent (70%).

Q: Died?

A: Yes, sir. [125]

Justice Carpio is of the view that the facts as stated by the RTC and the Court of Appeals clearly show that the
chemotherapy caused Angelica's death. [126]

I disagree. As heretofore discussed, in the absence of competent expert testimony, the Court has no factual basis to
declare that the chemotherapy administered by the petitioner proximately caused Angelica's death. Our ruling in Cruz v.
Court of Appeals is instructive: [127]

But while it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute
reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises
nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a
physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the
generality of cases, a matter of expert opinion. [Emphasis supplied]

In sum, the respondents failed to prove by appropriate evidence - i.e., by expert testimony - that Angelica's death was
caused by the chemotherapy the petitioner administered. This failure in establishing the fourth requisite of the
respondents' cause of action fatally seals the fate of the respondent's claim of medical negligence due to lack of
informed consent.

On the basis of the foregoing, I vote to grant the petition.

.R. No. 124354 December 29, 1999

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

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may spell the difference between life and death. In this sense, the
doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be
made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May 1995, which overturned the
3

decision of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising
4

from negligence in the performance of their professional duties towards petitioner Erlinda Ramos resulting in her
comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust
woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains
allegedly caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5),
she was as normal as any other woman. Married to Rogelio E. Ramos, an executive of Philippine
Long Distance Telephone Company, she has three children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice.
She was advised to undergo an operation for the removal of a stone in her gall bladder (TSN,
January 13, 1988, p. 5). She underwent a series of examinations which included blood and urine
tests (Exhs. "A" and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and
her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February
20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that their date at
the operating table at the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should undergo a "cholecystectomy" operation after examining the
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 good anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the anesthesiologist's fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and
TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC,
located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation
by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing
at the Capitol Medical Center, was also there for moral support. She reiterated her previous request
for Herminda to be with her even during the operation. After praying, she was given injections. Her
hands were held by Herminda as they went down from her room to the operating room (TSN,
January 13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p.
18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the
other defendant, who was to administer anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of Nursing at the Capitol Medical Center who
was to provide moral support to the patient, to them. Herminda was allowed to stay inside the
operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet
in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the
prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked,
"Mindy, wala pa ba ang Doctor"? The former replied, "Huwag kang mag-alaala, darating na iyon"
(Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio,
that the doctor was not yet around (id., p. 13). When she returned to the operating room, the patient
told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and told
Rogelio about what the patient said (id., p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the
doctor" even as he did his best to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who
was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met
Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id.,
p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as
a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he
went down to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here." She then saw people inside the operating room
"moving, doing this and that, [and] preparing the patient for the operation" (TSN, January 13, 1988,
p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless
patient. She thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of
the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She then
heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to intubate
the patient. The patient's nailbed became bluish and the patient was placed in a trendelenburg
position — a position where the head of the patient is placed in a position lower than her feet which
is an indication that there is a decrease of blood supply to the patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos "that
something wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intubate the patient
(TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw several doctors rushing towards the operating
room. When informed by Herminda Cruz that something wrong was happening, he told her
(Herminda) to be back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-
28).
 Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to
the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife would not have happened, had he (Dr. Hosaka)
looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the
patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp.
26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15,
1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos
in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part of her body. She cannot see or hear.
She is living on mechanical means. She suffered brain damage as a result of the absence of oxygen
in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from
the hospital, she has been staying in their residence, still needing constant medical attention, with
her husband Rogelio incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN,
October 19, 1989, pp. 32-34). She was also diagnosed to be suffering from "diffuse cerebral
parenchymal damage" (Exh. "G"; see also TSN, December 21, 1989,
p. 6).5

Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court of Quezon City
6

against herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack
of oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia
phase. On the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to
wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds that
defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in
not only intubating the patient, but also in not repeating the administration of atropine (TSN, August
20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for
almost three (3) hours. For after she committed a mistake in intubating [the] patient, the patient's
nailbed became bluish and the patient, thereafter, was placed in trendelenburg position, because of
the decrease of blood supply to the patient's brain. The evidence further shows that the hapless
patient suffered brain damage because of the absence of oxygen in her (patient's) brain for
approximately four to five minutes which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to
provide the patient a good anesthesiologist', and for arriving for the scheduled operation almost
three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the
doctors in their "practice of medicine" in the operating room. Moreover, the hospital is liable for
failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with
due care and prudence in rendering medical services to plaintiff-patient. For if the patient was
properly intubated as claimed by them, the patient would not have become comatose. And, the fact
that another anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed
 turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the operation
to a later date. This, they should have done, if defendants acted with due care and prudence as the
patient's case was an elective, not an emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former
the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15,
1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of
P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of the
appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice must
be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate court to a
new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the reglementary period for
filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The motion for reconsideration was submitted on 4 July 1995.
However, the appellate court denied the motion for extension of time in its Resolution dated 25 July
1995. Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty.
9

Sillano filed on 7 August 1995 a motion 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 Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate
court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March
1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already
expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand,
admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June
9, 1995. Computation wise, the period to file a Motion for Reconsideration expired on June 24. The
Motion for Reconsideration, in turn, was received by the Court of Appeals already on July 4,
necessarily, the 15-day period already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 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 petition for certiorari under Rule
45. The Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the
expiration of the fifteen-day (15) period counted from the receipt of the resolution of the Court of Appeals within
which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ,

DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, private respondents contend that the petition should not be given due course since the motion for
12

reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record. Petitioner, not being
a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his
given address. With a few exceptions, notice to a litigant without notice to his 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 record of
petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the
motion for reconsideration of petitioner, we believed that the receipt of the former should be considered in
determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on
time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase
"res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima
facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which
13

caused the injury complained of is shown to be under the management of the defendant or his servants and the
accident is such as in ordinary course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose
from or was caused by the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who
is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of
15

such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident
itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.
16

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the
17

nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural of convenience since it
18

furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In other
19

words, mere invocation and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of
the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to
20

the doctrine may be allowed, the following requisites must be satisfactorily shown:

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

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

defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible
is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the
22

benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable,
and must establish that the essential elements of the doctrine were present in a particular incident. 23

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied
24

when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of
negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a
25

question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of
law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such
27

matters clearly within the domain of medical science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of
28

skill and experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician
29

negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund
of common knowledge can determine the proper standard of care. Where common knowledge and experience
30

teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence,
which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is
31

appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and
the injury sustained while under the custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in
the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or
32

in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a
33 34

tooth while a patient's jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient
35

plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, among others.
36

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant
to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common
knowledge and observation, that the consequences of professional care were not as such as would ordinarily have
followed if due care had been
exercised. A distinction must be made between the failure to secure results, and the occurrence of something
37

more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in
a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The 38

physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
39

malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary
40

incident or unusual event outside of the routine performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the
average man as the negligent cause or causes of the untoward consequence. If there was such extraneous
41

interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter,
by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application
of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, where the Kansas Supreme Court in applying
43

the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the
care, custody and control of his physician who had complete and exclusive control over him, but the
operation was never performed. At the time of submission he was neurologically sound and
physically fit in mind and body, but he suffered irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the
process of a mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a person being put
under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in
the absence of negligence. Upon these facts and under these circumstances a layman would be
able to say, as a matter of common knowledge and observation, that the consequences of
professional treatment were not as such as would ordinarily have followed if due care had been
exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under the
influence of anesthetics and unconscious, and the circumstances are such that the true explanation
of event is more accessible to the defendants than to the plaintiff for they had the exclusive control of
the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur.44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder.
On that fateful day she delivered her person over to the care, custody and control of private respondents who
exercised complete and exclusive control over her. At the time of submission, Erlinda was neurologically sound and,
except for a few minor discomforts, was likewise physically fit in mind and body. However, during the administration
of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus,
without undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a
gall bladder operation. In fact, this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is
not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed.
Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all
under the exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda
could not have been guilty of contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control of the physicians, we hold that a practical
administration of justice dictates the application of res ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence
attended the management and care of the patient. Moreover, the liability of the physicians and the hospital in this
case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged lack of
skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon all
these initial determination a case is made out for the application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a patient while under anesthesia, 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 coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein,
the Court now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the
alleged negligence was the proximate cause of Erlinda's comatose condition. Corollary thereto, we shall also
determine if the Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez,
Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized
that she was candid enough to admit that she experienced some difficulty in the endotracheal intubation of the
45

patient and thus, cannot be said to be covering her negligence with falsehood. The appellate court likewise opined
that private respondents were able to show that the brain damage sustained by Erlinda was not caused by the
alleged faulty intubation but was due to the allergic reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr. Jamora. On the other hand, the
appellate court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the
brain injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her
piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of
the injury but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter,
private respondents' own testimonies which are reflected in the transcript of stenographic notes are replete of
signposts indicative of their negligence in the care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by
the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof.
Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the
operating room right beside the patient when the tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra.

Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding the left
hand of the patient and all of a sudden heard some remarks coming from Dra.
Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of
the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was
at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
 A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's
nailbed became bluish and I saw the patient was placed in trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that trendelenburg
position?

A: As far as I know, when a patient is in that position, there is a decrease of blood

supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as
part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do
not, and cannot, intubate. Even on the assumption that she is fully capable of determining whether
or not a patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat
of the patient. (TSN, July 25, 1991, 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 endotracheal
tube was in its proper place, and to determine the condition of the heart, lungs, and other organs.
Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the
appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer from
lack of sufficient factual bases.47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the
process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist,
she can very well 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 one. This is 48

precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is
the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or
those of which an ordinary 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 unnecessary. We take judicial notice of the fact that anesthesia
49

procedures have become so common, that even an ordinary person can tell if it was administered properly. As such,
it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not
require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of
determining whether or not the intubation was a success. She had extensive clinical experience starting as a staff
nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the
Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward manner,
50

with the kind of detail, clarity, consistency and spontaneity which would have been difficult to fabricate. With her
clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her testimony what
truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt
(sic), you did not immediately see the trachea?

DRA. GUTIERREZ:
 A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship
in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from
the normal anatomy of a person) making it harder to locate and, since Erlinda is obese and has a short neck and
52

protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen
the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the day before
elective surgery. It includes taking the patient's medical history, review of current drug therapy, physical
53

examination and interpretation of laboratory data. The physical examination performed by the anesthesiologist is
54

directed primarily toward the central nervous system, cardiovascular system, lungs and upper airway. A thorough
55

analysis of the patient's airway normally involves investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the
thyromental distance. Thus, physical characteristics of the patient's upper airway that could make tracheal
56

intubation difficult should be studied. Where the need arises, as when initial assessment indicates possible
57

problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's
airway would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda
was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-
up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during
the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the first time
only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and
professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the
core of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.

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 elective surgery and an emergency surgery just so her failure to perform the required pre-
operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day
before so you can introduce yourself to establish good doctor-patient relationship and
gain the trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the

anesthesiologist and in my case, with elective cases and normal cardio-pulmonary
clearance like that, I usually don't do it except on emergency and on cases that have
an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait for
days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time to be at the
patient's beside to do a proper interview and clinical evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the pre-
operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed and
cooperative.

Erlinda's case was elective and this was known to respondent Dra. 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 herself admitted that she had seen petitioner only in the operating room, and only on
the actual date of the cholecystectomy. She negligently failed to take advantage of this important opportunity. As
such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in
turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of
Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due to
bronchospasm mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system.
59

Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the
Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory that the oxygen
deprivation which led to anoxic encephalopathy, was due to an unpredictable drug reaction to the short-acting
60

barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist
and could not therefore properly advance expert opinion on allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported by his own admission that he formulated his opinions on the
drug not from the practical experience gained by a specialist or expert in the administration and use of Sodium
Pentothal on patients, but only from reading certain references, to wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion to use
pentothal as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to intubate our

patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you have
read from books and not by your own personal application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal
experience you feel that you can testify on pentothal here with medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of
pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in
this case is within the disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not testify about the drug with medical authority,
it is clear that the appellate court erred in giving weight to Dr. Jamora's testimony as an expert in the administration
of Thiopental Sodium.

The provision in the rules of evidence regarding expert witnesses states:

62

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is shown to possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about
which he or she is to testify, either by the study of recognized authorities on the subject or by practical
experience. Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he lacks
63

the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting testimony
from a specialist in the wrong field, private respondents' intentionally avoided providing testimony by competent and
independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an
allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing — some
of the more common accompanying signs of an allergic reaction — appears on record. No laboratory data were ever
presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical proof,
and against the weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the
Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought. Such an explanation
was advanced in order to advanced in order to absolve them of any and all responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation which
was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the result would not have occurred. An injury or damage is
64

proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable consequence of the act or omission. It is the dominant,
65

moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlinda's brain damage and, ultimately, her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was
likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on
the body of Erlinda. The development of abdominal distention, together with respiratory embarrassment indicates
that the endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead of the
intended endotracheal intubation what actually took place was an esophageal intubation. During intubation, such
distention indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as
the tube which carries oxygen is in the wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her lungs
Erlinda showed signs of cyanosis. As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent
66

only after he noticed that the nailbeds of Erlinda were already blue. However, private respondents contend that a
67

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, which supports the contention that the second intubation
was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the
same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again
observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court,
Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five
minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for
one-third (1/3) of deaths and serious injuries associated with anesthesia. Nevertheless, ninety-eight percent (98%)
69

or the vast majority of difficult intubations may be anticipated by performing a thorough evaluation of the patient's
airway prior to the operation. As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-
70

operative protocol which could have prevented this unfortunate incident. Had appropriate diligence and reasonable
care been used in the pre-operative evaluation, respondent physician could have been much more prepared to
meet the contingency brought about by the perceived anatomic variations in the patient's neck and oral area,
defects which would have been easily overcome by a prior knowledge of those variations together with a change in
technique. In other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative
71

evaluation, would have had little difficulty going around the short neck and protruding teeth. Having failed to
72

observe common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez'
negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-
called "captain of the ship," it is the surgeon's responsibility to see to it that those under him perform their task in
73

the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise the proper authority
(as the "captain" of the operative team) in not determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital at the same time as Erlinda's cholecystectomy, and was in fact
over three hours late for the latter's operation. Because of this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties
towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital
74

employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However,
the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to
submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who
either accept or reject the application. This is particularly true with respondent hospital.
75

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

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant"
staff. While "consultants" are not, technically employees, a point which respondent hospital asserts in denying all
responsibility for the patient's condition, the control exercised, the hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the
case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors
for petitioner's condition.
76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of
the Civil Code which considers a person accountable not only for his own acts but also for those of others based on
the former's responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or
77

entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. In 78

other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden
shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence
of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians,
failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and
supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over
its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to
discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were
unable to rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 of the Civil Code.
79

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos
(should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the period
from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at
P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a comatose individual. The calculated amount was not
even arrived at by looking at the actual cost of proper hospice care for the patient. What it reflected were the actual
expenses incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting
hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care.
In the instant case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores and
hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to
be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent
the accumulation of secretions which can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at
least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to
undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory
damages present us with some difficulties.

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 Civil Code provides:

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

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

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the
case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or
80

compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature
of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is
that these damages cover two distinct phases.

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

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having premised our award for compensatory damages on the amount
provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the
value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility
which generally specializes in such care. They should not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, this Court was confronted with a situation where the injury suffered by the
82

plaintiff would have led to expenses which were difficult to estimate because while they would have been a direct
result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the
future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

 As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left
lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be
deprived of the full ambulatory functions of her left extremity, even with the use of state of the art
prosthetic technology. Well beyond the period of hospitalization (which was paid for by Li), she will
be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from
the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced and
readjusted to changes in the size of her lower limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to
be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium
levels observed in the bones of all post-menopausal women. In other words, the damage done to
her would not only be permanent and lasting, it would also be permanently changing and adjusting
to the physiologic changes which her body would normally undergo through the years. The
replacements, changes, and adjustments will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are
inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious
than the amputation in the Valenzuela case.

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.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded would be inadequate if petitioner's condition remains
unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the
resulting moral damage because it would be highly speculative to estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or those actually affected by the victim's condition. The
84

husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient's
illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the
respondents, are charged with the moral responsibility of the care of the victim. The family's moral injury and
suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages
would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering
the length and nature of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise
proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in
negligence cases because where negligence exists and is proven, the same automatically gives the injured a right
to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career using unorthodox methods without incident. However,
when failure to follow established procedure results in the evil precisely sought to be averted by observance of the
procedure 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 case at bar, the failure to observe pre-operative assessment protocol which would
have influenced the intubation in a salutary way was fatal to private respondents' case.

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

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.