ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and asnatural guardians of the minors, ROMMEL RAMOS, RORODERI!"RAMOSandRONRAMONDRAMOS, petitioners, vs.!O#R$O% A&&EALS, DELOSSAN$OSMEDI!AL !EN$ER, DR.ORLINO 'OSA"A and DRA. &ER%E!$A G#$IERRE(, respondents.D E ! I S I O N"ANAN, J.)The Hippocratic Oath mandates physicians to give primordialconsideration to the healthand welfare of their patients.If a doctor fails to live up to this precept, he is made accountablefor his acts.A mistake, through gross negligence or incompetence or plain human error, mayspell the difference between life and death.In this sense, the doctor plays God on his patientsfate.!"#In the case at bar, the $ourt is called upon to rule whether a surgeon, an anesthesiologist anda hospital should be made liable for the unfortunate comatose condition of a patient scheduledforcholecystectomy.!%#&etitioners seek the reversal of the decision!'# of the $ourt of Appeals, dated %( )ay "((*,whichoverturnedthedecision!+#of the,egional Trial $ourt, dated'-.anuary"((%, findingprivaterespondents liablefor damages arisingfromnegligenceintheperformanceof theirprofessional duties towards petitioner /rlinda ,amos resulting in her comatose condition.The antecedent facts as summari0ed by the trial court are reproduced hereunder1&laintiff /rlinda ,amos was, until the afternoon of .une "2, "(3*, a +24year old 5/6h. 7A89 robust woman 5T:;, October "(, "(3(, p. "-9./6cept for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her gall bladder 5T:;, .anuary "', "(33, pp. +4*9, she was as normal as any other woman.)arried to ,ogelio /. ,amos, an e6ecutive of &hilippine 9.?ecause the discomforts somehow interfered with her normal ways, she sought professional advice.:he was advised to undergo an operation for the removal of a stone in her gall bladder 5T:;, .anuary "', "(33, p. *9.:he underwent a series of e6aminations which included blood and urine tests 5/6hs. 7A8 and 7$89 which indicated she was fit for surgery.Through the intercession of a mutual friend, =r. ?uenvia@e 5T:;, .anuary "', "(33, p.29, she and her husband ,ogelio met for the first time =r. Orlino Ho0aka 5should be HosakaA see T:;, Bebruary %-, "((-, p. '9, one of the defendants in this case, on .une"-, "(3*.They agreed that their date at the operating table at the =4%29./rlinda ,amos stayed at the I$C for a month.About four months thereafter or on ;ovember "*, "(3*, the patient was released from the hospital.=uring the whole period of her confinement, she incurred hospital bills amounting to &(',*+%.%* which is the sub@ect of a promissory note and affidavit of undertaking e6ecuted by ,ogelio /. ,amos in favor of =, petitioners filed a civil case!># for damages with the ,egional Trial$ourt of Due0on $ity against herein private respondents alleging negligence in the managementand care of /rlinda ,amos.=uringthetrial, bothparties presentedevidence as tothepossiblecauseof /rlindasin@ury.&laintiff presented the testimonies of =ean Herminda $ru0 and =r. )ariano Gavino toprove that the damage sustained by /rlinda was due to lack of o6ygen in her brain caused by thefaulty management of her airway by private respondents during the anesthesia phase.On theother hand, private respondents primarily relied on the e6pert testimony of =r. /duardo .amora,a pulmonologist, to the effect that the cause of brain damage was /rlindas allergic reaction tothe anesthetic agent, Thiopental :odium 5&entothal9.After considering the evidence from both sides, the ,egional Trial $ourt rendered @udgmentin favor of petitioners, to wit1After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions of law and @urisprudence to the case at bar, this $ourt finds and so holds that defendants are liable to plaintiffs for damages.The defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff4patient /rlinda ,amos.On the part of =r. &erfecta Gutierre0, this $ourt finds that she omitted to e6ercise reasonable care in not only intubating the patient, but also in not repeating the administration of atropine 5T:;, August %-, "((", pp. *4"-9, without due regard to thefact that the patient was inside the operating room for almost three 5'9 hours.Bor after she committed a mistake in intubating !the# patient, the patientHs nailbed became bluish and the patient, thereafter, was placed in trendelenburg position, because of the decrease of blood supply to the patientHs brain.The evidence further shows that the hapless patient suffered brain damage because of the absence of o6ygen in her 5patientHs9 brain for appro6imately four to five minutes which, in turn, caused the patient to become comatose.On the part of =r. Orlino Hosaka, this $ourt finds that he is liable for the acts of =r. &erfecta Gutierre0 whom he had chosen to administer anesthesia on the patient as part of his obligation to provide the patient a Igood anesthesiologistH, and for arriving for the scheduled operation almost three 5'9 hours late.On the part of =, wellwithin the e6tended period given by the $ourt.&etitioners assail the decision of the $ourt of Appeals on the following grounds1II; &CTTI;G )C$H ,/+# An in@ury or damage is pro6imately 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 substantialpart in bringing about or actually causing the in@ury or damageA and that the in@ury or damagewas either a direct result or a reasonably probable conseEuence of the act or omission.!>*# It is thedominant, moving or producing cause.Applyingtheabovedefinitioninrelationtotheevidenceat hand, faultyintubationisundeniably the pro6imate cause which triggered the chain of events leading to /rlindas braindamage and, ultimately, her comatosed condition.&rivate respondents themselves admitted in their testimony that the first intubation was afailure.This fact was likewiseobservedbywitness $ru0whensheheardrespondent =ra.Gutierre0 remarked, 7Ang hirap ma4intubate nito, mali yata ang pagkakapasok.O lumalaki angtiyan.8 Thereafter, witness $ru0noticedabdominal distentiononthebodyof /rlinda.Thedevelopment of abdominal distention, together with respiratory embarrassment indicates that theendotracheal tube entered the esophagus instead of the respiratory tree.In other words, insteadof the intended endotracheal intubation what actually took place was an esophagealintubation.=uring intubation, such distention indicates that air has entered the gastrointestinaltract through the esophagus instead of the lungs through the trachea./ntry into the esophaguswould certainly cause some delay in o6ygen delivery into the lungs as the tube which carrieso6ygenisinthewrongplace.That abdominal distentionhadbeenobservedduringthefirstintubation suggests that the length of time utili0ed in inserting the endotracheal tube 5up to thetime the tube was withdrawn for the second attempt9 was fairly significant.=ue to the delay inthe deliveryof o6ygeninher lungs /rlinda showedsigns of cyanosis.!>># As statedinthetestimonyof=r.Hosaka, thelackofo6ygenbecameapparent onlyafterhenoticedthat thenailbedsof/rlindawerealreadyblue.!>2#However, privaterespondentscontendthat asecondintubation was e6ecuted on /rlinda and this one was successfully done.Ge do not think so.;oevidence e6ists on record, beyond private respondentsH bare claims, which supports thecontentionthat thesecondintubationwas successful.Assumingthat the endotracheal tubefinally found its way into the proper orifice of the trachea, the same gave no guarantee of o6ygendelivery, the hallmark of a successful intubation.In fact, cyanosis was again observedimmediately after the second intubation.&roceeding from this event 5cyanosis9, it could not beclaimed, as private respondents insist, that the secondintubation was accomplished./vengranting that the tube was successfully inserted during the second attempt, it was obviously toolate.As aptly e6plained by the trial court, /rlinda already suffered brain damage as a result ofthe inadeEuate o6ygenation of her brain for about four to five minutes.!>3#The aboveconclusionis not without basis.:cientific studies point out that intubationproblems areresponsiblefor one4third5"K'9 of deaths andserious in@uries associatedwithanesthesia.!>(#;evertheless, ninety4eight percent 5(3O9 or the vast ma@ority of difficult intubationsmaybeanticipatedbyperformingathoroughevaluationofthepatientsairwaypriortotheoperation.!2-# As stated beforehand, respondent =ra. Gutierre0 failed to observe the proper pre4operative protocol which could have prevented this unfortunate incident.Had appropriatediligence and reasonable care been used in the pre4operative evaluation, respondent physiciancould have been much more prepared to meet the contingency brought about by the perceivedanatomic variations in the patients neck and oral area, defects which would have been easilyovercomeby a priorknowledgeof those variationstogetherwith a change in techniEue.!2"# Inotherwords, ane6periencedanesthesiologist, adeEuatelyalertedbyathoroughpre4operativeevaluation,would have had little difficulty going around the short neck and protruding teeth.!2%# Having failed to observe common medical standards in pre4operative management andintubation, respondent =ra. Gutierre0 negligence resulted in cerebral ano6ia and eventual comaof /rlinda.Ge now determine the responsibility of respondent =r. Orlino Hosaka as the head of thesurgical team.As the so4called 7captain of the ship,8!2'# it is the surgeons responsibility to see toit that thoseunder himperformtheir taskintheproper manner.,espondent =r. Hosakasnegligence can be found in his failure to e6ercise the proper authority 5as the 7captain8 of theoperative team9 in not determining if his anesthesiologist observed proper anesthesiaprotocols.In fact, no evidence on record e6ists to show that respondent =r. Hosaka verified ifrespondent =ra. Gutierre0 properly intubated the patient. Burthermore, it does not escape us thatrespondent =r. Hosaka had scheduled another procedure in a different hospital at the same timeas /rlindas cholecystectomy, and was in fact over three hours late for the lattersoperation.?ecause of this, he had little or no time to confer with his anesthesiologist regardingthe anesthesia delivery.This indicates that he was remiss in his professional duties towards hispatient.Thus, he shares eEual responsibility for the events which resulted in /rlindas condition.Genowdiscusstheresponsibilityofthehospital inthisparticularincident.TheuniEuepractice 5among private hospitals9 of filling upspecialist staff withattending andvisiting7consultants,8!2+# whoareallegedlynot hospital employees, presentsproblemsinapportioningresponsibility for negligence in medical malpractice cases.However, the difficulty is only moreapparent than real.In the first place, hospitals e6ercise significant control in the hiring and firing of consultantsand in the conduct of their work within the hospital premises.=octors who apply for7consultant8 slots, visiting or attending, are reEuired to submit proof of completion of residency,theireducational EualificationsA generally, evidenceofaccreditationbytheappropriateboard5diplomate9, evidence of fellowshipinmost cases, andreferences.These reEuirements arecarefully scrutini0ed by members of the hospital administration or by a review committee set upbythehospital whoeither accept or re@ect the application.!2*# This is particularlytruewithrespondent hospital.Afteraphysicianisaccepted,either as avisitingorattending consultant,he is normallyreEuired to attend clinico4pathological conferences,conduct bedside rounds for clerks, internsand residents, moderate grand rounds and patient audits and performother tasks andresponsibilities, for the privilege of being able to maintain a clinic in the hospital, andKor for theprivilege of admitting patients into the hospital.In addition to these, the physicians performanceas a specialist is generally evaluated by a peer review committee on the basis of mortality andmorbiditystatistics, andfeedbackfrompatients, nurses, interns andresidents.Aconsultantremiss inhis duties, or a consultant whoregularlyfalls short of the minimumstandardsacceptable to the hospital or its peer review committee, is normally politely terminated.In other words, private hospitals, hire, fire and e6ercise real control over their attending andvisiting7consultant8staff.Ghile 7consultants8 are not,technicallyemployees,a point whichrespondent hospital asserts in denying all responsibility for the patients condition, the controle6ercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks ofan employer4employee relationship, with the e6ception of the payment of wages.In assessingwhether such a relationship in fact e6ists, the control test is determining.Accordingly, on thebasis of theforegoing, werulethat for thepurposeof allocatingresponsibilityinmedicalnegligence cases, an employer4employee relationship in effect e6ists between hospitals and theirattending and visiting physicians.This being the case, the Euestion now arises as to whether ornot respondent hospital is solidarily liable with respondent doctors for petitioners condition.!2>#The basis for holding an employer solidarily responsible for the negligence of its employeeis found in Article %"3- of the $ivil $ode which considers a person accountable not only for hisown acts but also for those of others based on the formers responsibility under a relationshipof patria potestas.!22# :uch responsibility ceases when the persons or entity concerned prove thatthey have observed the diligence of a good father of the family to prevent damage.!23# In otherwords, while the burden of proving negligence rests on the plaintiffs, once negligence is shown,the burden shifts to the respondents 5parent, guardian, teacher or employer9 who should provethat they observed the diligence of a good father of a family to prevent damage.In the instant case, respondent hospital, apart from a general denial of its responsibility overrespondentphysicians,failed toadduceevidenceshowingthat ite6ercised thediligence of agood father of a family in the hiring and supervision of the latter.It failed to adduce evidencewith regard to the degree of supervision which it e6ercised over its physicians.In neglecting tooffer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge itsburden under the last paragraph of Article %"3-.Having failed to do this, respondent hospital isconseEuently solidarily responsible with its physicians for /rlindas condition.?ased on the foregoing, we hold that the $ourt of Appeals erred in accepting and relying onthetestimoniesofthewitnessesfortheprivaterespondents.Indeed, asshownbytheabovediscussions, private respondents were unable to rebut the presumption of negligence.Cpon thesedisEuisitionsweholdthat privaterespondentsaresolidarilyliablefordamagesunder Article%"2>!2(# of the $ivil $ode.Ge now come to the amount of damages due petitioners.The trial court awarded a totalof &>'%,---.-- pesos 5should be &>">,---.--9 in compensatory damages to the plaintiff,7sub@ect to its being updated8 covering the period from "* ;ovember "(3* up to "* April "((%,based on monthly e6penses for the care of the patient estimated at &3,---.--.At current levels, the &3---Kmonthly amount established by the trial court at the time of itsdecisionwouldbe grosslyinadeEuate tocover the actual costs of home4basedcare for acomatose individual. The calculated amount was not even arrived at by looking at the actual costof proper hospice care for the patient.Ghat it reflected were the actual e6penses incurred andproved by the petitioners after they were forced to bring home the patient to avoid mountinghospital bills.And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospicespeciali0inginthecareof thechronicallyill for thepurposeof providingaproper milieuadeEuate to meet minimum standards of care.In the instant case for instance, /rlinda has to beconstantly turned from side to side to prevent bedsores and hypostatic pneumonia.Beeding isdone by nasogastric tube.Bood preparation should be normally made by a dietitian to provideher with the correct daily caloric reEuirements and vitamin supplements.Burthermore, she has tobe seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonarytherapist to prevent the accumulation of secretions which can lead to respiratory complications.Given these considerations, the amount of actual damages recoverable in suits arising fromnegligence should at least reflect the correct minimum cost of proper care, not the cost of thecare the family is usually compelled to undertake at home to avoid bankruptcy.However, theprovisions of the $ivil $ode on actual or compensatory damages present us with somedifficulties.Gell4settled is the rule that actual damages which may be claimed by the plaintiff are thosesuffered by him as he has duly proved.The $ivil $ode provides1Art. 21. 4 /6cept as provided by law or by stipulation, one is entitled to an adeEuate compensation only for such pecuniary loss suffered by him as he has duly proved.:uch 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 in@ury suffered as a conseEuence of an act of negligence has been completed and that the costcan be liEuidated.However, these provisions neglect to take into account those situations, as inthis case, wheretheresultingin@urymight becontinuingandpossiblefuturecomplicationsdirectly arising from the in@ury, while certain to occur, are difficult to predict.In these cases, the amount of damages which should be awarded, if they are to adeEuatelyand correctly respond to the in@ury caused, should be one which compensates for pecuniary lossincurred and proved, up to the time of trialA and one which would meet pecuniary loss certain tobe suffered but which could not, from the nature of the case, be made with certainty.!3-# In otherwords, temperate damages can and should be awarded on top of actual or compensatory damagesin instances where the in@ury is chronic and continuing.And because of the uniEue nature ofsuchcases, noincompatibilityariseswhenbothactual andtemperatedamagesareprovidedfor.The reason is that these damages cover two distinct phases.As it would not be eEuitable 4 and certainly not in the best interests of the administration of@ustice 4 for the victim in such cases to constantly come before the courts and invoke their aid inseeking ad@ustments to the compensatory damages previously awarded 4 temperate damages areappropriate.The amountgivenastemperatedamages,thoughto a certaine6tentspeculative,should take into account the cost of proper care.Intheinstant case, petitionerswereabletoprovideonlyhome4basednursingcareforacomatose patient who has remained in that condition for over a decade.Having premised ouraward for compensatory damages on the amount provided by petitioners at the onset of litigation,it wouldbenowmuchmoreinstepwiththeinterests of @usticeif thevalueawardedfortemperatedamageswouldallowpetitionerstoprovideoptimal carefortheir lovedoneinafacility which generally speciali0es in such care.They should not be compelled by direcircumstances to provide substandard care at home without the aid of professionals, for anythingless wouldbe grosslyinadeEuate.Cnder the circumstances, anawardof &",*--,---.--intemperate damages would therefore be reasonable.!3"#In Valen!uela vs. "ourt of Appeals,!3%# this $ourt was confronted with a situation where thein@urysufferedbytheplaintiffwouldhaveledtoe6penseswhichweredifficult toestimatebecause while they would have been a direct result of the in@ury 5amputation9, and were certainto be incurred by the plaintiff, they were likely to arise only in the future.Geawarded &",---,---.-- in moral damages in that case.=escribing the nature of the in@ury, the $ourt therein stated1As a result of the accident, )a.