12 ramos vs. court of appeals

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________________

* FIRST DIVISION.

585

VOL. 321, DECEMBER 29, 1999 585

Ramos vs. Court of Appeals

dant 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 arosefrom or was caused by the defendant’s want of care.

Same; Same; Same; Same; Res Ipsa Loquitur is applied in

conjunction with the doctrine of common knowledge. —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 isgrounded 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.

Same; Same; Same; Same; Mere invocation and application of

the doctrine does not dispense with the requirement of proof of

negligence; Requisites before resort to the doctrine may be allowed.

—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 nature of a procedural

rule. It is regarded as a mode of proof, or a mere procedural

convenience since it furnishes a substitute for, and relieves a

plaintiff of, the burden of producing specific proof of negligence. In



other 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 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.

586

586 SUPREME COURT REPORTS ANNOTATED


Same; Same; Same; Same; When the doctrine of res ipsa loqui-

tur is availed by the plaintiff, the need for expert medical

testimony is dispensed with because the injury itself provides the

proof of negligence. —Although generally, expert medicaltestimony 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 testifiedto 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.

Same; Same; Same; Same; 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.

—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.

Same; Same; Same; Same; Res ipsa loquitur is not availablein a malpractice suit if the only showing is that the desired result

of an operation or treatment was not accomplished. —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

587

VOL. 321, DECEMBER 29, 1999 587


the desired result. Thus, res ipsa loquitur is not available in amalpractice suit if the only showing is that the desired result of

an operation or treatment was not accomplished.

Hospitals; Damages; Proximate Cause Defined. —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 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, moving or

producing cause.

Same; Same; 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. —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 anemployer-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.Same; Same; The basis for holding an employer solidarily

responsible for the negligence of its employee is found in Article

2180 of the Civil Code. —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 entity

concerned prove that they have observed the diligence of a goodfather of the family to prevent damage. In other words, while the

burden of proving negligence rests

588





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.

Same; Same; Amount of damages awarded may be a

continuing one where the injury is chronic and continuing, as

when the patient is comatose.—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, bemade with certainty. In other words, temperate damages can and

should be awarded on top of actual or 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.

PETITION for review on certiorari of a decision of the

Court of Appeals.

The facts are stated in the opinion of the Court.

Luis C.A. Sillano for petitioners.

Macarius S. Galutera for private respondent De los

Santos Medical Center.

Tanjuatco, Sta. Maria, Tanjuatco collaborating

counsel for DLSMC.

Antonio H. Abad & Associates for respondent doctors.

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

589

VOL. 321, DECEMBER 29, 1999 589


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 decision3

of the Court

of Appeals, dated 29 May 1995, which overturned the

decision4

of the Regional Trial Court, dated 30 January1992, finding private respondents liable for damages

arising 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

________________

1 In the United States alone, a great number of people die every year as a result

of medical mishaps. The 13 December 1999 issue of TIME MAGAZINE featured an

article on medical negligence entitled “Doctors’ Deadly Mistakes” which is quoted

in part: “It is hardly news that medical professionals make mistakes—even dumb,

deadly mistakes. What is shocking is how often it happens. Depending on which

statistics you believe, the number of Americans killed by medical screw-ups is

somewhere between 44,000 and 98,000 every year—the eighth leading cause of



death even by the more conservative figure, ahead of car crashes, breast cancer

and AIDS. More astonishing than the huge numbers themselves, though, is the

fact that public health officials had known about the problem for years and hadn’t

made a concerted effort to do something about it.”

2 Cholecystectomy is the surgical excision of the gall bladder.

3 CA Rollo, pp. 129-140.

4 Records, pp. 270-279.

590



Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos

(TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normalways, 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, onJune 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 theanesthesiologist’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

591

VOL. 321, DECEMBER 29, 1999 591


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 Cruzabout 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 whatthe 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 maintubate 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 oper-

592



ating 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’sbrain (id., pp. 19-20). Immediately thereafter, she went out of the

operating room, and she told Rogelio E. Ramos “that something

wrong was x x x 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

593

VOL. 321, DECEMBER 29, 1999 593


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 case6

for

damages with the Regional Trial Court of Quezon City

against herein private respondents alleging negligence in

the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as tothe possible cause of Erlinda’s injury. Plaintiff presented

the testimonies of Dean Herminda Cruz and Dr. Mariano

Gavino to prove that the damage 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 theanesthetic 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. Thedefendants 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

________________

5 Id. at 270-275.

6 Docketed as Civil Case No. Q-46885.

594



1)



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.

x x x

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:

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)

3)

the sum of P100,000.00 as reasonable attorney’s fees;

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,

595

VOL. 321, DECEMBER 29, 1999 595


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 trialcourt. 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 mustbe 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. Sillano filed on 7

August 1995 a motion to admit the motion for

reconsideration contending that the period to file the

appropriate plead-

________________

7 Records, pp. 276-278.

8 CA Rollo, p. 166.

9 Id. at 145.

596



ing 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 forfiling 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 Reconsiderationexpired 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 Reconsideration,

but after considering the Comment/Opposition, the former, for

lack of merit, is hereby DENIED.



SO ORDERED.

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 theexpiration 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:

________________

10 Id. at 195.

597

VOL. 321, DECEMBER 29, 1999 597


I

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 UNFORTUNATECOMATOSE 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,12

private respondents contend that the petition

should not be given due course since the motion for

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 appellate court was fur-

________________

11 Rollo, p. 19.

12 Id. at 91-98.

598



nished to the counsel on record. Petitioner, not being alawyer 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 believe 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.13

Where the thing which 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 man-

________________

13 57B Am Jur 2d, 493 (1989).

599

VOL. 321, DECEMBER 29, 1999 599




agement 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.15

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.16

Hence, res ipsa loquitur is applied in

conjunction with the doctrine of common knowledge.

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.17

Instead, it is considered as merely evidentiary or

in the nature of a procedural rule.18

It is regarded as a

mode of proof, or a mere procedural convenience since it

furnishes a substitute for, and relieves a plaintiff of, the

burden of producing specific proof of negligence.19

In other

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

________________

14 Africa, et al. vs. Caltex (Phil.), Inc., et al., 16 SCRA 449, 454 (1966).

15 57B Am Jur 2d, supra note 13 at 499.

16 Ibid.

17 Id. at 502.

18 Ibid.



1.

2.

3.

19 Id.

600



of going forward with the proof.20

Still, before resort to the

doctrine may be allowed, the following requisites must be

satisfactorily shown:

The accident is of a kind which ordinarily does not

occur in the absence of someone’s negligence;

It is caused by an instrumentality within the

exclusive control of the defendant or defendants;

andThe possibility of contributing conduct which would

make the plaintiff responsible is eliminated.21

In the above requisites, the fundamental element is the

“control of the instrumentality” which caused the damage.22

Such element of control must be shown to be within the

dominion of the defendant. In order to have the benefit of

the rule, a plaintiff, in addition to proving injury or

damage, must show a situation where it is applicable, andmust establish that the essential elements of the doctrine

were present in a particular incident.23

Medical malpractice24

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.25

The

application of res ipsa loquitur in medical negligence cases

presents a question of law since it is

________________

20 Id. at 503.

21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union

Gas System, 182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and



Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249

P.2d 647.

22 St. John’s Hospital and School of Nursing vs. Chapman, 434 P.2d

160, 166 (1967).

23 57B Am Jur 2d, supra note 13, at 513.

24 It is the type of claim which a victim has available to him or her to

redress a wrong committed by a medical professional which has caused

bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 778 [1997]).

25 Voss vs. Bridwell, supra note 21.

601

VOL. 321, DECEMBER 29, 1999 601


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.27

The reason is thatthe 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.28

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 actsof physicians and surgeons, external appearances, and

manifest conditions which are observable by any one may

be given by non-expert witnesses.29

Hence, in cases where

the res ipsa loquitur is applicable, the court is permitted to

find a 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.30

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

________________

26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).

27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs.

Foncannon, 127 Kan. 573, 274 P. 237.

29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95

Kan. 802, 149 P. 422, 423.

30 SOLIS, supra note 27, at 239.

602



occurred.

31

When the doctrine is appropriate, all that thepatient 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 thedoctrine in the following situations: leaving of a foreign

object in the body of the patient after an operation,32

injuries sustained on a healthy part of the body which was

not under, or in the area, of treatment,33

removal of the

wrong part of the body when another part was intended,34

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,36

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.37

A distinction

must

________________

31 Voss vs. Bridwell, supra note 21 at 970-971.

32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).

33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).

34 Griffin vs. Norman, 192 NYS 322 (1922).

35 Brown vs. Shortilledge, 277 P. 134 (1929).

36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).

37 Voss vs. Bridwell, supra note 21, at 969.

603

VOL. 321, DECEMBER 29, 1999 603


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.38

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.39

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.40

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.41

If there was such extraneous

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,43

where the Kansas Supreme Court in applying

the res ipsa loquitur stated:

________________

38 Id. at 968.

39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).

40 Voss vs. Bridwell, supra note 21, at 968.

41 Sanders vs. Smith, 27 So. 2d 889, 893 (1946).

42 Ibid.

43 Voss vs. Bridwell, supra note 21.

604





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



________________

44 Id. at 971.

605

VOL. 321, DECEMBER 29, 1999 605


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 happen in the absence of

negligence of someone in the administration of anesthesia

and in the use of endotracheal tube. Normally, a personbeing 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 herunconscious.

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 andcare 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,

606



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 Erlindas

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 intubation45

of the 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 thebrain 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

________________

45 It is the method of intubating a patient through the oral cavity.

Under this procedure, after the patient has been preoxygenated and

paralyzed and is no longer breathing on his own, the anesthetist inserts

an instrument called a laryngoscope into the patient’s oral pharynx. The

patient’s neck is hyperextended, that is, bent back as far as possible so

that the anesthetist can see or “visualize” the patient’s epiglottis and vocal

cords. The anesthetist will then thread the endotracheal tube between the

patient’s vocal cords into the trachea, and then hook the tube to the

breathing bag and anesthetic machine.

607

VOL. 321, DECEMBER 29, 1999 607


and hospital and absolved them of any liability towards Er-linda 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 nexusupon 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 I have said, I was with the patient, I was beside the

stretcher holding the left hand of the patient and all of

a sudden I heard some remarks coming from Dra.

Perfecta

608



Gutierrez herself. She was saying “Ang hirap

maintubate nito, mali yata ang pagkakapasok. Olumalaki ang tiyan.”

x x x

ATTY. PAJARES:

Q: From whom did you hear those words “lumalaki ang

tiyan?



A: From Dra. Perfecta Gutierrez.

x x x

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

ofthe left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that

particulartime?

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 theoperating 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 thepatient was placed in trendelenburg position.

x x x

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

x x x

________________

46 TSN, January 13, 1988, pp. 16-20.

609



VOL. 321, DECEMBER 29, 1999 609


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.48

This is 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 nontechnical

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

________________



47 CA Rollo, pp. 134-135.

48 Stockham vs. Hall, supra note 29.

610



unnecessary.49

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.

At any rate, without doubt, petitioner’s witness, an

experienced clinical nurse whose long experience andscholarship led to her appointment as Dean of the Capitol

Medical Center School of 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.50

Reviewing witness Cruz’ statements, we find that the samewere delivered in a straightforward manner, 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’strachea, 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 . . .

________________

49 61 Am Jur 2d, 513 (1989).

50 TSN, January 13, 1988, p. 3.

611

VOL. 321, DECEMBER 29, 1999 611


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 rightaway.

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)52

making it

harder to locate and, since Erlinda is obese and has a short

neck and protruding teeth, it made intubation even moredifficult.

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 Erlindas 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.53

It includes taking the patient’s medical history,

review of current drug therapy, physical examination and

interpretation of laboratory data.54

The physical

examination performed by the

________________

51 TSN, November 15, 1990, p. 11.

52 TSN, October 9, 1990, p. 13.

53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).

54 Ibid.

612



anesthesiologist is directed primarily toward the central

nervous system, cardiovascular system, lungs and upper

airway.55

A thorough 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.56

Thus,

physical characteristics of the patient’s upper airway thatcould make tracheal intubation difficult should be

studied.57

Where the need arises, as when initial

assessment indicates possible problems (such as the alleged

short neck and protruding teeth of Erlinda) a thorough

examination of the patient’s 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

________________

55 Id. at 105 (Italics supplied).

56 Id. at 106.

57 Id.

613

VOL. 321, DECEMBER 29, 1999 613


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 gainthe trust and confidence of the

patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on theoperative 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 preoperative procedure so that ananesthesiologist 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 make a

proper assessment, including the time to be at the patient’s

bedside 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 forpurposes 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 admittedthat she had seen

________________

58 TSN, November 15, 1990, p. 6.

614





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

attemptto 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

59

mediated by her allergic response to thedrug, Thiopental Sodium, introduced into her system.

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 re-spondents’ theory that the oxygen

deprivation which led to anoxic encephalopathy,60

was due

to an unpredictable drug reaction to the short-acting

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, couldnot 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



________________

59 Constriction of the air passages of the lung by spasmodic contraction

of the bronchial muscles (as in asthma).

60 Permanent damage to the brain caused by inadequate oxygenation.

615

VOL. 321, DECEMBER 29, 1999 615


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 readingcertain 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. Jamoras 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

________________

61 TSN, February 28, 1991, pp. 10-11.

616



the foregoing transcript, in which the pulmonologist

himself admitted that he could not testify about the drugwith 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 evidence62

regarding expert

witnesses states:

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.63

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.

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

________________

62 Rule 130, RULES OF COURT.

63 61 Am Jur 2d, supra note 49, 516.

617

VOL. 321, DECEMBER 29, 1999 617


would be an act of God. Evidently, the Thiopentalallergy

theory vigorously asserted by private respondents was a

mere afterthought. Such an explanation was 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.64

An injury or

damage is 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.65

It is the

dominant, 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

Erlindas 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

________________

64 BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).

65 Ibid.

618



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.66

As stated in the testimony of Dr. Hosaka, the

lack of oxygen became apparent only after he noticed that

the nailbeds of Erlinda were already blue.67

However,

private respondents contend that a second intubation was

executed on Erlinda and this one was successfully done. We

do not think so. No evidence exists on record, beyond

private respondents’ bare claims, 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 anes-

________________

66 It is a bluish coloration of the skin or mucous membranes caused by

lack of oxygen or abnormal hemoglobin in the blood.

67 TSN, March 27, 1990, p. 22.

68 Records, p. 274.

619



VOL. 321, DECEMBER 29, 1999 619


thesia.69

Nevertheless, ninety-eight percent (98%) or the

vast majority of difficult intubations may be anticipated by

performing a thorough evaluation of the patient’s airway

prior to the operation.

70

As stated beforehand, respondentDra. Gutierrez failed to observe the proper pre-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.

71

Inother words, an experienced anesthesiologist, adequately

alerted by a thorough pre-operative evaluation, would have

had little difficulty going around the short neck and

protruding teeth.72

Having failed to 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,”

73

it is the surgeon’s

responsibility to see to it that those under him perform

their task in the proper manner. Respondent Dr. Hosaka’s

negligence can be found in his failure to exercise the proper

authority (as the “captain” of

________________

69

FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).70 Ibid.

71 Id., The book provides a thorough discussion on the management of

difficult intubations.

72 Id.

73 Under this doctrine, the surgeon is likened to a ship captain who

must not only be responsible for the safety of the crew but also of the

passengers of the vessel. The head surgeon is made responsible for



everything that goes wrong within the four corners of the operating room.

It enunciates the liability of the surgeon not only for the wrongful acts of

those who are under his physical control but also those wherein he has

extension of control.

620



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 anotherprocedure in a different hospital at the same time as

Erlindas 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 thisparticular incident. The unique practice (among private

hospitals) of filling up specialist staff with attending and

visiting “consultants,”74

who are allegedly not hospital

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 applyfor “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

________________

74 The term “consultant” is loosely used by hospitals to distinguish their

attending and visiting physicians from the residents, who are also

physicians. In most hospitals abroad, the term visiting or attending

physician, not consultant, is used.

621

VOL. 321, DECEMBER 29, 1999 621


the application.

75

This is particularly true with respondenthospital.

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’sperformance 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

________________

75 These requirements are in fact found in the standard application

forms for visiting and attending physicians of respondent hospital.

76 The hospital’s control over respondent physicians is all the more

significant when one considers the fact that it controls every-

622



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 notonly for his own acts but also for those of others based on

the former’s responsibility under a relationship of patria

potestas.77

Such responsibility ceases when the persons or

entity concerned prove that they have observed the

diligence of a good father of the family to prevent damage.78

In 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 thediligence 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 supervi-



________________

thing which occurs in an operating room, through its nursing

supervisors and charge nurses. No operations can be undertaken without

the hospital’s direct or indirect consent.

77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE,

822 (1993).

78 Art. 2180 of the Civil Code provides: 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 serviceof 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.

623

VOL. 321, DECEMBER 29, 1999 623


sion 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 isconsequently 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 217679

of the

Civil Code.

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 P8,000/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.

________________

79 Whoever by act or omission causes damage to another, there being

fault or negligence, is obliged to pay for the damage done.

624



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 losssuffered 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 continuingand 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

625

VOL. 321, DECEMBER 29, 1999 625




with certainty. In other words, temperate damages can

and should be awarded on top of actual or 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,82

this Court was

confronted with a situation where the injury suffered by

the plaintiff would have led to expenses which were

difficult to

________________

80 Art. 2224, CIVIL CODE.

81 Should petitioner remain in the same condition for another ten years,

the amount awarded in the form of temperate damages would in fact, be

inadequate.

82 253 SCRA 303 (1996).



626



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 foreverbe 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 her lifetime, the prosthetic devise will have to be replacedand 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 postmenopausal 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 theyears. The replacements, changes, and adjustments will require

corresponding adjustive physical and occupational therapy. All of

these adjustments, it has been documented, are painful.

x x x.

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

________________

83 Id. at 327-328.

627

VOL. 321, DECEMBER 29, 1999 627


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 awardedwould 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.84

The 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.

________________

84 Id. at 328.

628



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 toreparation 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 byobservance 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 preoperative 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., Chairman), Puno, Pardo and

Ynares-Santiago, JJ., concur.

Judgment modified.

629

VOL. 321, DECEMBER 29, 1999 629

Land Bank of the Philippines vs. Court of Appeals

Note.—Proximate cause is determined on the facts of

each case upon mixed considerations of logic, commonsense, policy and precedent. ( Philippine Bank of Commerce

vs. Court of Appeals, 269 SCRA 695 [1997])

——o0o——

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12 ramos vs. court of appeals

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