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MARILOU BASTAN, Petitioners,

Even early on, patients have consigned their lives to
the skill of their doctors. Time and again, it can be
said that the most important goal of the medical
profession is the preservation of life and health of the
people. Corollarily, when a physician departs from
his sacred duty and endangers instead the life of his
patient, he must be made liable for the resulting
injury. This Court, as this case would show, cannot
and will not let the act go unpunished.[1]
This is a petition for review under Rule 45 of the
Rules of Court challenging the August 29, 2008
Decision[2] of the Court of Appeals (CA), and its May
19, 2009 Resolution[3] in CA-G.R. CR No. 29559,
dismissing the appeal and affirming in toto the June
14, 2005 Decision[4] of the Regional Trial Court,
Branch 43, Manila (RTC), finding the accused guilty
beyond reasonable doubt of simple imprudence
resulting to serious physical injuries.
Belinda Santiago (Mrs. Santiago) lodged a complaint
with the National Bureau of
Investigation (NBI) against the petitioners, Dr.
Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou
Bastan (Dr. Bastan), for their alleged neglect of
professional duty which caused her son, Roy Alfonso
Santiago (Roy Jr.), to suffer serious physical injuries.
Upon investigation, the NBI found that Roy Jr. was
hit by a taxicab; that he was rushed to the Manila
Doctors Hospital for an emergency medical treatment;
that an X-ray of the victims ankle was ordered; that
the X-ray result showed no fracture as read by Dr.
Jarcia; that Dr. Bastan entered the emergency
room(ER) and, after conducting her own examination
of the victim, informed Mrs. Santiago that since it was
only the ankle that was hit, there was no need to
examine the upper leg; that eleven (11) days later,

Roy Jr. developed fever, swelling of the right leg and

misalignment of the right foot; that Mrs. Santiago
brought him back to the hospital; and that the X-ray
revealed a right mid-tibial fracture and a linear
hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the City
Prosecutor of Manila for preliminary investigation.
Probable cause was found and a criminal case for
reckless imprudence resulting to serious physical
injuries, was filed against Dr. Jarcia, Dr. Bastan and
Dr. Pamittan,[5] before the RTC, docketed as Criminal
Case No. 01-196646.
On June 14, 2005, the RTC found the petitioners
guilty beyond reasonable doubt of the crime of Simple
Imprudence Resulting to Serious Physical
Injuries. The decretal portion of the RTC decision
WHEREFORE, premises considered, the Court finds
accused DR. EMMANUEL JARCIA, JR. and DR.
MARILOU BASTAN GUILTY beyond reasonable
doubt of the crime of SIMPLE IMPRUDENCE
and are hereby sentenced to suffer the penalty
of ONE (1) MONTH and ONE (1) DAY to TWO
(2) MONTHS and to indemnify MRS. BELINDA
SANTIAGO the amount of 3,850.00 representing
medical expenses without subsidiary imprisonment in
case of insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been
apprehended nor voluntarily surrendered despite
warrant issued for her arrest, let warrant be issued for
her arrest and the case against her be ARCHIVED, to
be reinstated upon her apprehension.
The RTC explained:
After a thorough and in depth evaluation of the
evidence adduced by the prosecution and the defense,
this court finds that the evidence of the prosecution is
the more credible, concrete and sufficient to create
that moral certainty in the mind of the Court that
accused herein [are] criminally responsible. The Court
believes that accused are negligent when both failed
to exercise the necessary and reasonable prudence in

ascertaining the extent of injury of Alfonso Santiago,

However, the negligence exhibited by the two
doctors does not approximate negligence of a
reckless nature but merely amounts to simple
imprudence. Simple imprudence consists in the
lack of precaution displayed in those cases in
which the damage impending to be caused is not
the immediate nor the danger clearly
manifest. The elements of simple imprudence are
as follows.

similar circumstances, bearing in mind the advanced

state of the profession at the time of treatment or the
present state of medical science. In the case
of Leonila Garcia-Rueda v. Pascasio, the Supreme
Court stated that, in accepting a case, a doctor in
effect represents that, having the needed training and
skill possessed by physicians and surgeons practicing
in the same field, he will employ such training, care
and skill in the treatment of his patients. He therefore
has a duty to use at least the same level of care that
any other reasonably competent doctor would use to
treat a condition under the same circumstances.

that there is lack of precaution on the part of
the offender; and

In litigations involving medical negligence, the

plaintiff has the burden of establishing accusedappellants negligence, and for a reasonable conclusion
that the damage impending to be caused is
of negligence, there must be proof of breach of duty
not immediate of the danger is not clearly
on the part of the physician as well as a causal
connection of such breach and the resulting injury of
his patient.The connection between the negligence
Considering all the evidence on record, The Court and the injury must be a direct and natural sequence
finds the accused guilty for simple imprudence
of events, unbroken by intervening efficient causes. In
resulting to physical injuries. Under Article 365 of other words, the negligence must be the proximate
the Revised Penal Code, the penalty provided for is cause of the injury. Negligence, no matter in what it
arresto mayor in its minimum period.[7]
consists, cannot create a right of action unless it is the
proximate cause of the injury complained of. The
Dissatisfied, the petitioners appealed to the CA.
proximate cause of an injury is that cause which, in
natural and continuous sequence, unbroken by any
As earlier stated, the CA affirmed the RTC decision in efficient intervening cause, produces the injury and
toto. The August 29, 2008 Decision of the CA
without which the result would not have occurred.
pertinently reads:
This Court holds concurrently and finds the foregoing
circumstances sufficient to sustain a judgment of
conviction against the accused-appellants for the
crime of simple imprudence resulting in serious
physical injuries. The elements of imprudence are: (1)
that the offender does or fails to do an act; (2) that the
doing or the failure to do that act is voluntary; (3) that
it be without malice; (4) that material damage results
from the imprudence; and (5) that there is inexcusable
lack of precaution on the part of the offender, taking
into consideration his employment or occupation,
degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had
committed an inexcusable lack of precaution in the
treatment of their patient is to be determined
according to the standard of care observed by other
members of the profession in good standing under

In the case at bench, the accused-appellants

questioned the imputation against them and argued
that there is no causal connection between their
failure to diagnose the fracture and the injury
sustained by Roy.
We are not convinced.
The prosecution is however after the cause which
prolonged the pain and suffering of Roy and not on
the failure of the accused-appellants to correctly
diagnose the extent of the injury sustained by Roy.
For a more logical presentation of the discussion, we
shall first consider the applicability of the doctrine
of res ipsa loquitur to the instant case. Res ipsa
loquitur is a Latin phrase which literally means the
thing or the transaction speaks for itself. 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 accused-appellant who is charged with
negligence. It is grounded in the superior logic of
ordinary human experience and, on the basis of such
experience or 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.
The specific acts of negligence was narrated by Mrs.
Santiago who accompanied her son during the latters
ordeal at the hospital. She testified as follows:
Fiscal Formoso:
Q: Now, he is an intern did you not consult the
doctors, Dr. Jarcia or Dra. Pamittan to confirm
whether you should go home or not?

A: According to Dra. Bastan, there is no need to x-ray

because it was the ankle part that was run over.

relieve him from the fracture. A boy of tender age

whose leg was hit by a vehicle would engender a
well-founded belief that his condition may worsen
Q: What did you do or tell her?
without proper medical attention. As junior residents
who only practice general surgery and without
A: I told her, sir, why is it that they did not
specialization with the case consulted before them,
examine[x] the whole leg. They just lifted the pants of they should have referred the matter to a
my son.
specialist. This omission alone constitutes simple
imprudence on their part. When Mrs. Santiago
Q: So you mean to say there was no treatment made at insisted on having another x-ray of her child on the
upper part of his leg, they refused to do so. The
mother would not have asked them if they had no
A: None, sir.
exclusive control or prerogative to request an x-ray
test. Such is a fact because a radiologist would only
conduct the x-ray test upon request of a physician.
A: I just listened to them, sir. And I just asked if I will
still return my son.
Q: And you were present when they were called?
A: Yes, sir.

A: Dra. Pamittan was inside the cubicle of the nurses

and I asked her, you let us go home and you dont even Q: And what was discussed then by Sis. Retoria?
clean the wounds of my son.
A: When they were there they admitted that they have
mistaken, sir.
Q: And what did she [tell] you?
A: They told me they will call a resident doctor, sir.
Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be done?
A: Yes, sir.
Q: What did you [tell] her?
A: I told her, sir, while she was cleaning the wounds
of my son, are you not going to x-ray up to the knee
because my son was complaining pain from his ankle
up to the middle part of the right leg.
Q: And what did she tell you?

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 someones negligence;
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.
In the above requisites, the fundamental element is the
control of the instrumentality which caused the
damage. Such element of control must be shown to be
within the dominion of the accused-appellants. 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 and must establish that
the essential elements of the doctrine were present in
a particular incident. The early treatment of the leg
of Roywould have lessen his suffering if not entirely

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,
external appearances, and manifest conditions which
are observable by any one may be given by nonexpert witnesses. Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the
court from its fund of common knowledge can
determine the proper standard of care. Where
common knowledge and experience teach that a
resulting injury would not have occurred to the patient
if due care had been exercised, an inference of
The testimony of Mrs. Santiago was corroborated by a negligence may be drawn giving rise to an application
bone specialist Dr. Tacata. He further testified based
of the doctrine of res ipsa loquitur without medical
on his personal knowledge, and not as an expert, as he evidence, which is ordinarily required to show not
examined himself the child Roy. He testified as
only what occurred but how and why it occurred. In
the case at bench, we give credence to the testimony
of Mrs. Santiago by applying the doctrine of res ipsa
Fiscal Macapagal:
Q: And was that the correct respon[se] to the medical
problem that was presented to Dr. Jarcia and Dra.
A: I would say at that stage, yes. Because they have
presented the patient and the history. At sabi nila,
nadaanan lang po ito. And then, considering their year
of residency they are still junior residents, and they
are not also orthopedic residents but general surgery
residents, its entirely different thing. Because if you
are an orthopedic resident, I am not trying to saybut if
I were an orthopedic resident, there would be more
precise and accurate decision compare to a general
surgery resident in so far as involved.
Q: You mean to say there is no supervisor attending
the emergency room?
A: At the emergency room, at the Manila Doctors
Hospital, the supervisor there is a consultant that
usually comes from a family medicine. They see
where a certain patient have to go and then if they
cannot manage it, they refer it to the consultant on
duty. Now at that time, I dont [know] why they
dont.Because at that time, I think, it is the
decision. Since the x-rays.

Res ipsa loquitur is not a rigid or ordinary doctrine to

be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each
case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that
the consequences of professional care were not as
such as would ordinarily have followed if due care
had been exercised. A distinction must be made
between the failure to secure results and the
occurrence of something more unusual and not
ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that
particular practice. The latter circumstance is the
primordial issue that confronted this Court and we
find application of the doctrine of res ipsa loquitur to
be in order.
WHEREFORE, in view of the foregoing, the appeal
in this case is hereby DISMISSED and the assailed
decision of the trial court finding accused-appellants
guilty beyond reasonable doubt of simple imprudence
resulting in serious physical injuries is
hereby AFFIRMED in toto.

The petitioners filed a motion for reconsideration, but
it was denied by the CA in its May 19,
2009 Resolution. Hence, this petition.
The petitioners pray for the reversal of the decision of
both the RTC and the CA anchored on the following


The foregoing can be synthesized into two basic
issues: [1] whether or not the doctrine of res ipsa
loquitur is applicable in this case; and [2] whether or
not the petitioners are liable for criminal negligence.
The CA is correct in finding that there was negligence
on the part of the petitioners. After a perusal of the
records, however, the Court is not convinced that the
petitioners are guilty of criminal negligence
complained of. The Court is also of the view that the
CA erred in applying the doctrine of res ipsa
loquitur in this particular case.
As to the Application of
The Doctrine of Res Ipsa Loquitur
This doctrine of res ipsa loquitur means "Where the
thing which causes injury is shown to be under the
management of the defendant, and the accident is

such as in the ordinary course of things does not

happen if those who have the management use proper
care, it affords reasonable evidence, in the absence of
an explanation by the defendant, that the accident
arose from want of care." The Black's Law
Dictionary defines the said doctrine. Thus:

the person in charge; and (3) the injury suffered must

not have been due to any voluntary action or
contribution of the person injured.[12]

In this case, the circumstances that caused patient Roy

Jr.s injury and the series of tests that were supposed to
be undergone by him to determine the extent of the
The thing speaks for itself. Rebuttable presumption or injury suffered were not under the exclusive control
inference that defendant was negligent, which arises
of Drs. Jarcia and Bastan. It was established that they
upon proof that the instrumentality causing injury was are mere residents of the Manila Doctors Hospital at
in defendant's exclusive control, and that the accident that time who attended to the victim at the emergency
was one which ordinarily does not happen in absence room.[13] While it may be true that the circumstances
of negligence. Res ipsa loquitur is a rule of evidence
pointed out by the courts below seem doubtless to
whereby negligence of the alleged wrongdoer may be constitute reckless imprudence on the part of the
inferred from the mere fact that the accident happened petitioners, this conclusion is still best achieved, not
provided the character of the accident and
through the scholarly assumptions of a layman like
circumstances attending it lead reasonably to belief
the patients mother, but by the unquestionable
that in the absence of negligence it would not have
knowledge of expert witness/es. As to whether the
occurred and that thing which caused injury is shown petitioners have exercised the requisite degree of skill
to have been under the management and control of the and care in treating patient Roy, Jr. is generally a
alleged wrongdoer. Under this doctrine, the happening matter of expert opinion.
of an injury permits an inference of negligence where
plaintiff produces substantial evidence that the injury As to Dr. Jarcia and
was caused by an agency or instrumentality under the
Dr. Bastans negligence
exclusive control and management of defendant, and
that the occurrence was such that in the ordinary
The totality of the evidence on record clearly points to
course of things would not happen if reasonable care
the negligence of the petitioners. At the risk of being
had been used.[10]
repetitious, the Court, however, is not satisfied that
The doctrine of res ipsa loquitur as a rule of evidence Dr. Jarcia and Dr. Bastan are criminally negligent in
this case.
is unusual to the law of negligence which recognizes
that prima facie negligence may be established
without direct proof and furnishes a substitute for
specific proof of negligence. The doctrine, however,
Negligence is defined as the failure to observe for the
is not a rule of substantive law, but merely a mode of
protection of the interests of another person that
proof or a mere procedural convenience. The rule,
degree of care, precaution, and vigilance which the
when applicable to the facts and circumstances of a
given case, is not meant to and does not dispense with circumstances justly demand, whereby such other
person suffers injury.[14]
the requirement of proof of culpable negligence on
the party charged. It merely determines and regulates
what shall be prima facie evidence thereof and helps
the plaintiff in proving a breach of the duty. The
doctrine can be invoked when and only when, under
the circumstances involved, direct evidence is absent
and not readily available.[11]
The requisites for the application of the doctrine
of res ipsa loquitur are: (1) the accident was of a kind
which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which
caused the injury was under the exclusive control of

Reckless imprudence consists of voluntarily doing or

failing to do, without malice, an act from which
material damage results by reason of an inexcusable
lack of precaution on the part of the person
performing or failing to perform such act.[15]
The elements of simple negligence are: (1) that there
is lack of precaution on the part of the offender, and
(2) that the damage impending to be caused is not
immediate or the danger is not clearly manifest.[16]

In this case, the Court is not convinced with moral
certainty that the petitioners are guilty of reckless
imprudence or simple negligence. The elements
thereof were not proved by the prosecution beyond
reasonable doubt.

A: Well, I can say that it was a spiral fracture of the

mid-tibial, it is the bigger bone of the leg.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a

specialist in pediatric orthopedic, although pointing to
some medical procedures that could have been done
by Dr. Jarcia and Dr. Bastan, as physicians on duty,
was not clear as to whether the injuries suffered by
patient Roy Jr. were indeed aggravated by the
petitioners judgment call and their diagnosis or
appreciation of the condition of the victim at the time
they assessed him. Thus:

A: When we say spiral, it is a sort of letter S, the

length was about six (6) to eight (8) centimeters.

Q: Will you please tell us, for the record, doctor, what
is your specialization?
A: At present I am the chairman department of
orthopedic in UP-PGH and I had special training in
pediatric orthopedic for two (2) years.
Q: In June 1998, doctor, what was your position and
what was your specialization at that time?
A: Since 1980, I have been specialist in pediatric
Q: When Alfonso Santiago, Jr. was brought to you by
his mother, what did you do by way of physicians as
first step
A: As usual, I examined the patient physically and, at
that time as I have said, the patient could not walk so I
[began] to suspect that probably he sustained a
fracture as a result of a vehicular accident. So I
examined the patient at that time, the involved leg, I
dont know if that is left or right, the involved leg then
was swollen and the patient could not walk, so I
requested for the x-ray of [the] lower leg.

Q: And when you say spiral, doctor, how long was

this fracture?

Q: Mid-tibial, will you please point to us, doctor,

where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the
bigger one is the tibial and the smaller one is the
fibula. The bigger one is the one that get fractured.
Q: And in the course of your examination of Alfonso
Santiago, Jr. did you ask for the history of such
A: Yes, actually, that was a routine part of our
examination that once a patient comes in, before we
actually examine the patient, we request for a detailed
history. If it is an accident, then, we request for the
exact mechanism of injuries.
Q: And as far as you can recall, Doctor, what was the
history of that injury that was told to you?
A: The patient was sideswiped, I dont know if it is a
car, but it is a vehicular accident.
Q: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso Santiago,

Q: What part of the leg, doctor, did you request to be


A: Normally, we do not interview the child because,

usually, at his age, the answers are not accurate. So, it
was the mother that I interviewed.

A: If we refer for an x-ray, usually, we suspect a

fracture whether in approximal, middle or lebistal
tinial, we usually x-ray the entire extremity.

Q: And were you informed also of his early

medication that was administered on Alfonso
Santiago, Jr.?

Q: And what was the result?

A: No, not actually medication. I was informed that

this patient was seen initially at the emergency room
by the two (2) physicians that you just mentioned, Dr.

Jarcia and Dra. Bastan, that time who happened to be

my residents who were [on] duty at the emergency

which sometimes normally happens that the actual

fractured bone do not get swollen.

A: At the emergency room, at the Manila Doctors
Hospital, the supervisor there is a consultant that
usually comes from a family medicine. They see
where a certain patient have to go and then if they
cannot manage it, they refer it to the consultant on
duty. Now at that time, I dont why they dont Because
at that time, I think, it is the decision. Since the x-rays
Q: You also said, Doctor, that Dr. Jarcia and Dra.
Bastan are not even an orthopedic specialist.

Q: Doctor, if you know that the patient sustained a

fracture on the ankle and on the foot and the
history that was told to you is the region that was
hit is the region of the foot, will the doctor subject
the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject
an x-ray of the leg. Because you have to consider
the kind of fracture that the patient sustained
would you say the exact mechanism of injury. For
example spiral, paikot yung bale nya, so it was
possible that the leg was run over, the patient fell,
and it got twisted. Thats why the leg seems to be
fractured.[17] [Emphases supplied]

A: They are general surgeon residents. You have to

man[x] the emergency room, including neurology,
orthopedic, general surgery, they see everything at
the emergency room.

It can be gleaned from the testimony of Dr. Tacata that

a thorough examination was not performed on Roy Jr.
As residents on duty at the emergency room, Dr.
Jarcia and Dr. Bastan were expected to know the
medical protocol in treating leg fractures and in
attending to victims of car accidents. There was,
Q: But if initially, Alfonso Santiago, Jr. and his case however, no precise evidence and scientific
was presented to you at the emergency room, you
explanation pointing to the fact that the delay in the
would have subjected the entire foot to x-ray even
application of the cast to the patients fractured leg
if the history that was given to Dr. Jarcia and Dra. because of failure to immediately diagnose the
Bastan is the same?
specific injury of the patient, prolonged the pain of
the child or aggravated his condition or even caused
A: I could not directly say yes, because it would
further complications. Any person may opine that had
still depend on my examination, we cannot subject patient Roy Jr. been treated properly and given the
the whole body for x-ray if we think that the
extensive X-ray examination, the extent and severity
damaged was only the leg.
of the injury, spiral fracture of the mid-tibial part or
the bigger bone of the leg, could have been detected
Q: Not the entire body but the entire leg?
early on and the prolonged pain and suffering of Roy
Jr. could have been prevented. But still, that opinion,
A: I think, if my examination requires it, I would.
even how logical it may seem would not, and could
not, be enough basis to hold one criminally liable;
Q: So, you would conduct first an examination?
thus, a reasonable doubt as to the petitioners guilt.
A: Yes, sir.

Although the Court sympathizes with the plight of the

mother and the child in this case, the Court is bound
Q: And do you think that with that examination
by the dictates of justice which hold inviolable the
that you would have conducted you would discover
right of the accused to be presumed innocent until
the necessity subjecting the entire foot for x-ray?
proven guilty beyond reasonable doubt. The Court,
nevertheless, finds the petitioners civilly liable for
A: It is also possible but according to them, the
their failure to sufficiently attend to Roy Jr.s medical
foot and the ankle were swollen and not the leg,
needs when the latter was rushed to the ER, for while

a criminal conviction requires proof beyond
reasonable doubt, only a preponderance of evidence is
required to establish civil liability. Taken into account
also was the fact that there was no bad faith on their

Assuming again for the sake of argument that the

petitioners may still raise this issue of no
physicianpatient relationship, the Court finds and so
holds that there was a physicianpatient relationship in
this case.

Dr. Jarcia and Dr. Bastan cannot pass on the liability

to the taxi driver who hit the victim. It may be true
that the actual, direct, immediate, and proximate
cause of the injury (fracture of the leg bone or tibia)
of Roy Jr. was the vehicular accident when he was hit
by a taxi. The petitioners, however, cannot simply
invoke such fact alone to excuse themselves from any
liability. If this would be so, doctors would have a
ready defense should they fail to do their job in
attending to victims of hit-and-run, maltreatment, and
other crimes of violence in which the actual, direct,
immediate, and proximate cause of the injury is
indubitably the act of the perpetrator/s.

In the case of Lucas v. Tuao,[20] the Court wrote that

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

In failing to perform an extensive medical

examination to determine the extent of Roy Jr.s
injuries, Dr. Jarcia and Dr. Bastan were remiss of their
duties as members of the medical profession.
Assuming for the sake of argument that they did not
have the capacity to make such thorough evaluation at
that stage, they should have referred the patient to
another doctor with sufficient training and experience
instead of assuring him and his mother that everything
was all right
This Court cannot also stamp its imprimatur on the
petitioners contention that no physician-patient
relationship existed between them and patient Roy Jr.,
since they were not his attending physicians at that
time. They claim that they were merely requested by
the ER nurse to see the patient while they were
passing by the ER for their lunch. Firstly, this issue
was never raised during the trial at the RTC or even
before the CA. The petitioners, therefore, raise the
want of doctor-patient relationship for the first time
on appeal with this Court. It has been settled that
issues raised for the first time on appeal cannot be
considered because a party is not permitted to change
his theory on appeal. To allow him to do so is unfair
to the other party and offensive to the rules of fair
play, justice and due process.[18] Stated differently,
basic considerations of due process dictate that
theories, issues and arguments not brought to the
attention of the trial court need not be, and ordinarily
will not be, considered by a reviewing court.[19]

Indubitably, a physician-patient relationship exists

between the petitioners and patient Roy Jr. Notably,
the latter and his mother went to the ER for an
immediate medical attention. The petitioners allegedly
passed by and were requested to attend to the
victim (contrary to the testimony of Dr. Tacata that
they were, at that time, residents on duty at the ER).
They obliged and examined the victim, and later
assured the mother that everything was fine and that
they could go home. Clearly, a physician-patient
relationship was established between the petitioners
and the patient Roy Jr.
To repeat for clarity and emphasis, if these doctors
knew from the start that they were not in the position
to attend to Roy Jr., a vehicular accident victim, with
the degree of diligence and commitment expected of
every doctor in a case like this, they should have not
made a baseless assurance that everything was all
right. By doing so, they deprived Roy Jr. of adequate
medical attention that placed him in a more dangerous
situation than he was already in. What petitioners
should have done, and could have done, was to refer
Roy Jr. to another doctor who could competently and
thoroughly examine his injuries.

All told, the petitioners were, indeed, negligent

but only civilly, and not criminally, liable as the facts
Article II, Section 1 of the Code of Medical Ethics of
the Medical Profession in the Philippines states:
A physician should attend to his patients faithfully
and conscientiously. He should secure for them all
possible benefits that may depend upon his
professional skill and care. As the sole tribunal to
adjudge the physicians failure to fulfill his obligation
to his patients is, in most cases, his own conscience,
violation of this rule on his part is discreditable and

wounded feelings, moral shock, social humiliation,

and similar injury unjustly inflicted on a
person. Intended for the restoration of the
psychological or emotional status quo ante, the award
of moral damages is designed to compensate
emotional injury suffered, not to impose a penalty on
the wrongdoer.[23]
The Court, likewise, finds the petitioners also liable
for exemplary damages in the said amount. Article
2229 of the Civil Code provides that exemplary
damages may be imposed by way of example or
correction for the public good.

Established medical procedures and practices, though

in constant instability, are devised for the purpose of
preventing complications. In this case, the petitioners
failed to observe the most prudent medical procedure
under the circumstances to prevent the complications
suffered by a child of tender age.

WHEREFORE, the petition is PARTLY

GRANTED. The Decision of the Court of Appeals
dated August 29, 2008 is REVERSED and SET
ASIDE. A new judgment is
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and
Dr. Marilou Bastan of the crime of reckless
imprudence resulting to serious physical injuries but
declaring them civilly liable in the amounts of:

As to the Award of

(1) 3,850.00 as actual damages;


(2) 100,000.00 as moral damages;

While no criminal negligence was found in the

(3) 50,000.00 as exemplary damages; and
petitioners failure to administer the necessary medical
attention to Roy Jr., the Court holds them civilly liable (4) Costs of the suit.
for the resulting damages to their patient. While it was
the taxi driver who ran over the foot or leg of Roy Jr.,
their negligence was doubtless contributory.
with interest at the rate of 6% per annum from the
It appears undisputed that the amount of 3,850.00, as date of the filing of the Information. The rate shall be
12% interest per annum from the finality of judgment
expenses incurred by patient Roy Jr., was adequately
until fully paid.
supported by receipts. The Court, therefore, finds the
petitioners liable to pay this amount by way of actual
The Court is aware that no amount of compassion can
suffice to ease the sorrow felt by the family of the
child at that time. Certainly, the award of moral and
exemplary damages in favor of Roy Jr. in the amount
of 100,000.00 and 50,000.00, respectively, is
proper in this case.
It is settled that moral damages are not punitive in
nature, but are designed to compensate and alleviate
in some way the physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation,


parents/heirs of deceased Angelica Soliman,

Immediate cause : a. Osteosarcoma, Status Post AKA

Antecedent cause : b. (above knee amputation)


Underlying cause : c. Status Post Chemotherapy

Challenged in this petition for review on certiorari is

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

On February 21, 1994, respondents filed a damage

suit[7] against petitioner, Dr. Leo Marbella, Mr. Jose
Ledesma, a certain Dr. Arriete and SLMC.
Respondents charged them with negligence and
disregard of Angelicas safety, health and welfare by
their careless administration of the chemotherapy
drugs, their failure to observe the essential
precautions in detecting early the symptoms of fatal
blood platelet decrease and stopping early on the
chemotherapy, which bleeding led to hypovolemic
shock that caused Angelicas untimely demise. Further,
it was specifically averred that petitioner assured the
respondents that Angelica would recover in view of
95% chance of healing with chemotherapy (Magiging
normal na ang anak nyo basta ma-chemo. 95% ang
healing) and when asked regarding the side effects,
petitioner mentioned only slight vomiting, hair loss
and weakness (Magsusuka ng kaunti. Malulugas ang
buhok. Manghihina). Respondents thus claimed that
they would not have given their consent to
chemotherapy had petitioner not falsely assured them
of its side effects.

The factual antecedents:

On July 7, 1993, respondents 11-year old daughter,
Angelica Soliman, underwent a biopsy of the mass
located in her lower extremity at the St. Lukes
Medical Center (SLMC). Results showed that
Angelica was suffering
from osteosarcoma, osteoblastic type,[4] a high-grade
(highly malignant) cancer of the bone which usually
afflicts teenage children. Following this diagnosis and
as primary intervention, Angelicas right leg was
amputated by Dr. Jaime Tamayo in order to remove
the tumor.As adjuvant treatment to eliminate any
remaining cancer cells, and hence minimize the
chances of recurrence and prevent the disease from
spreading to other parts of the patients body
(metastasis), chemotherapy was suggested by Dr.
Tamayo. Dr. Tamayo referred Angelica to another
doctor at SLMC, herein petitioner Dr. Rubi Li, a
medical oncologist.
On August 18, 1993, Angelica was admitted to
SLMC. However, she died on September 1, 1993, just
eleven (11) days after the (intravenous) administration
of the first cycle of the chemotherapy
regimen. Because SLMC refused to release a death
certificate without full payment of their hospital bill,
respondents brought the cadaver of Angelica to the
Philippine National Police (PNP) Crime Laboratory
at Camp Crame for post-mortem examination. The
Medico-Legal Report issued by said institution
indicated the cause of death as Hypovolemic shock
secondary to multiple organ hemorrhages and
Disseminated Intravascular Coagulation.[5]

declarations of petitioner and respondents

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

Petitioner claimed that she explained to respondents

that even when a tumor is removed, there are still
small lesions undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean out the
small lesions in order to lessen the chance of the
cancer to recur. She did not give the respondents any
assurance that chemotherapy will cure Angelicas
cancer. During these consultations with respondents,
she explained the following side effects of
chemotherapy treatment to respondents: (1) falling
hair; (2) nausea and vomiting; (3) loss of appetite; (4)
low count of white blood cells [WBC], red blood cells
In her answer,[8] petitioner denied having been
[RBC] and platelets; (5) possible sterility due to the
negligent in administering the chemotherapy drugs to effects on Angelicas ovary; (6) damage to the heart
Angelica and asserted that she had fully explained to
and kidneys; and (7) darkening of the skin especially
respondents how the chemotherapy will affect not
when exposed to sunlight. She actually talked with
only the cancer cells but also the patients normal body respondents four times, once at the hospital after the
parts, including the lowering of white and red blood
surgery, twice at her clinic and the fourth time when
cells and platelets. She claimed that what happened to Angelicas mother called her through long distance.
Angelica can be attributed to malignant tumor cells
This was disputed by respondents who countered
possibly left behind after surgery. Few as they may
that petitioner gave them assurance that there is 95%
be, these have the capacity to compete for nutrients
chance of healing for Angelica if she undergoes
such that the body becomes so weak structurally
chemotherapy and that the only side effects were
(cachexia) and functionally in the form of lower
nausea, vomiting and hair loss.[11] Those were the only
resistance of the body to combat infection. Such
side-effects of chemotherapy treatment mentioned by
infection becomes uncontrollable and triggers a chain petitioner.[12]
of events (sepsis or septicemia) that may lead to
bleeding in the form of Disseminated Intravascular
On July 27, 1993, SLMC discharged Angelica, with
Coagulation (DIC), as what the autopsy report
instruction from petitioner that she be readmitted after
showed in the case of Angelica.
two or three weeks for the chemotherapy.

Since the medical records of Angelica were not

On the other hand, the Certificate of Death[6] issued by produced in court, the trial and appellate courts had to
SLMC stated the cause of death as follows:
rely on testimonial evidence, principally the

On August 18, 1993, respondents brought Angelica to

SLMC for chemotherapy, bringing with them the
results of the laboratory tests requested by petitioner:

Angelicas chest x-ray, ultrasound of the liver,

creatinine and complete liver function tests.
Petitioner proceeded with the chemotherapy by
first administering hydration fluids to Angelica.[14]
The following day, August 19, petitioner began
administering three chemotherapy drugs Cisplatin,
Doxorubicin[16] and
Cosmegen[17] intravenously.Petitioner was supposedly
assisted by her trainees Dr. Leo Marbella[18] and Dr.
Grace Arriete.[19] In his testimony, Dr. Marbella denied
having any participation in administering the said
chemotherapy drugs.[20]
On the second day of chemotherapy, August 20,
respondents noticed reddish discoloration on
Angelicas face.[21] They asked petitioner about it, but
she merely quipped, Wala yan. Epekto ng gamot.
Petitioner recalled noticing the skin rashes on the
nose and cheek area of Angelica. At that moment, she
entertained the possibility that Angelica also had
systemic lupus and consulted Dr. Victoria Abesamis
on the matter.[23]
On the third day of chemotherapy, August 21,
Angelica had difficulty breathing and was thus
provided with oxygen inhalation apparatus. This time,
the reddish discoloration on Angelicas face had
extended to her neck, but petitioner dismissed it again
as merely the effect of medicines.[24] Petitioner
testified that she did not see any discoloration on
Angelicas face, nor did she notice any difficulty in the
childs breathing. She claimed that Angelica merely
complained of nausea and was given ice chips.[25]
On August 22, 1993, at around ten oclock in the
morning, upon seeing that their child could not
anymore bear the pain, respondents pleaded with
petitioner to stop the chemotherapy. Petitioner
supposedly replied: Dapat 15 Cosmegen pa iyan.
Okay, lets observe. If pwede na, bigyan uli ng
chemo. At this point, respondents asked petitioners
permission to bring their child home. Later in the
evening, Angelica passed black stool and reddish
urine.[26] Petitioner countered that there was no record
of blackening of stools but only an episode of loose
bowel movement (LBM). Petitioner also testified that
what Angelica complained of was carpo-pedal spasm,
not convulsion or epileptic attack, as respondents call
it (petitioner described it in the vernacular
as naninigas ang kamay at paa). She then requested

for a serum calcium determination and stopped the
chemotherapy. When Angelica was given calcium
gluconate, the spasm and numbness subsided.[27]
The following day, August 23, petitioner yielded to
respondents request to take Angelica home. But prior
to discharging Angelica, petitioner requested for a
repeat serum calcium determination and explained to
respondents that the chemotherapy will be
temporarily stopped while she observes Angelicas
muscle twitching and serum calcium level. Takehome medicines were also prescribed for Angelica,
with instructions to respondents that the serum
calcium test will have to be repeated after seven days.
Petitioner told respondents that she will see Angelica
again after two weeks, but respondents can see her
anytime if any immediate problem arises.[28]
However, Angelica remained in confinement because
while still in the premises of SLMC, her convulsions
returned and she also had LBM. Angelica was given
oxygen and administration of calcium continued.[29]

denied that there were gadgets attached to Angelica at

that time.[34]
On August 29, Angelica developed ulcers in her
mouth, which petitioner said were blood clots that
should not be removed. Respondents claimed that
Angelica passed about half a liter of blood through
her anus at around seven oclock that evening, which
petitioner likewise denied.
On August 30, Angelica continued bleeding. She was
restless as endotracheal and nasogastric tubes were
inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a
bloody content. Angelica was given more platelet
concentrate and fresh whole blood, which petitioner
claimed improved her condition. Petitioner told
Angelica not to remove the endotracheal tube because
this may induce further bleeding.[35] She was also
transferred to the intensive care unit to avoid

Angelica became hysterical and started removing

those gadgets attached to her. At three oclock in the
morning of September 1, a priest came and they
prayed before Angelica expired. Petitioner finally
came back and supposedly told respondents that there
was malfunction or bogged-down machine.[37]
By petitioners own account, Angelica was merely
irritable that day (August 31). Petitioner noted though
that Angelicas skin was indeed sloughing off.[38] She
stressed that at 9:30 in the evening, Angelica pulled
out her endotracheal tube.[39] On September 1, exactly
two weeks after being admitted at SLMC for
chemotherapy, Angelica died.[40] The cause of death,
according to petitioner, was septicemia, or
overwhelming infection, which caused Angelicas
other organs to fail.[41] Petitioner attributed this to the
patients poor defense mechanism brought about by
the cancer itself.[42]

While he was seeking the release of Angelicas

cadaver from SLMC, Reynaldo claimed that
The next day, respondents claimed that Angelica
petitioner acted arrogantly and called him names. He
The next day, August 24, respondents claimed that
became hysterical, vomited blood and her body turned was asked to sign a promissory note as he did not
Angelica still suffered from convulsions. They also
black. Part of Angelicas skin was also noted to be
have cash to pay the hospital bill.[43]
noticed that she had a fever and had difficulty
shredding by just rubbing cotton on it. Angelica was
breathing.[30] Petitioner insisted it was carpo-pedal
so restless she removed those gadgets attached to her, Respondents also presented as witnesses Dr. Jesusa
spasm, not convulsions. She verified that at
saying Ayaw ko na; there were tears in her eyes and
Nieves-Vergara, Medico-Legal Officer of the PNParound 4:50 that afternoon, Angelica developed
she kept turning her head. Observing her daughter to
Crime Laboratory who conducted the autopsy on
difficulty in breathing and had fever. She then
be at the point of death, Lina asked for a doctor but
Angelicas cadaver, and Dr. Melinda Vergara
requested for an electrocardiogram analysis, and
the latter could not answer her anymore.[36] At this
Balmaceda who is a Medical Specialist employed at
infused calcium gluconate on the patient at a stat
time, the attending physician was Dr. Marbella who
the Department of Health (DOH) Operations and
dose. She further ordered that Angelica be given
was shaking his head saying that Angelicas platelets
Management Services.
Bactrim,[31] a synthetic antibacterial combination drug, were down and respondents should pray for their
to combat any infection on the childs body.[33]
daughter. Reynaldo claimed that he was introduced to Testifying on the findings stated in her medico-legal
report, Dr. Vergara noted the following: (1) there were
a pediatrician who took over his daughters case, Dr.
By August 26, Angelica was bleeding through the
Abesamis who also told him to pray for his daughter. fluids recovered from the abdominal cavity, which is
mouth. Respondents also saw blood on her anus and
Angelica continued to have difficulty in her breathing not normal, and was due to hemorrhagic shock
urine. When Lina asked petitioner what was
secondary to bleeding; (2) there was hemorrhage at
and blood was being suctioned from her stomach. A
happening to her daughter, petitioner replied, Bagsak nurse was posted inside Angelicas room to assist her
the left side of the heart; (3) bleeding at the upper
ang platelets ng anak mo. Four units of platelet
breathing and at one point they had to revive Angelica portion of and areas adjacent to, the esophagus; (4)
concentrates were then transfused to
lungs were heavy with bleeding at the back and lower
by pumping her chest. Thereafter, Reynaldo claimed
Angelica. Petitioner prescribed Solucortef.
portion, due to accumulation of fluids; (4) yellowish
that Angelica already experienced difficulty in
Considering that Angelicas fever was high and her
discoloration of the liver; (5) kidneys showed
urinating and her bowel consisted of blood-like
white blood cell count was low, petitioner prescribed
appearance of facial shock on account of
fluid. Angelica requested for an electric fan as she
Leucomax. About four to eight bags of blood,
hemorrhages; and (6) reddishness on external surface
was in pain. Hospital staff attempted to take blood
consisting of packed red blood cells, fresh whole
samples from Angelica but were unsuccessful because of the spleen. All these were the end result of
blood, or platelet concentrate, were transfused to
hypovolemic shock secondary to multiple organ
they could not even locate her vein. Angelica asked
Angelica. For two days (August 27 to 28), Angelica
hemorrhages and disseminated intravascular
for a fruit but when it was given to her, she only
continued bleeding, but petitioner claimed it was
coagulation. Dr. Vergara opined that this can be
smelled it. At this time, Reynaldo claimed he could
lesser in amount and in frequency. Petitioner also
attributed to the chemical agents in the drugs given to
not find either petitioner or Dr. Marbella. That night,

the victim, which caused platelet reduction resulting

to bleeding sufficient to cause the victims death. The
time lapse for the production of DIC in the case of
Angelica (from the time of diagnosis of sarcoma) was
too short, considering the survival rate of about 3
years. The witness conceded that the victim will also
die of osteosarcoma even with amputation or
chemotherapy, but in this case Angelicas death was
not caused by osteosarcoma. Dr. Vergara admitted that
she is not a pathologist but her statements were based
on the opinion of an oncologist whom she had
interviewed. This oncologist supposedly said that if
the victim already had DIC prior to the chemotherapy,
the hospital staff could have detected it.[44]
On her part, Dr. Balmaceda declared that it is the
physicians duty to inform and explain to the patient or
his relatives every known side effect of the procedure
or therapeutic agents to be administered, before
securing the consent of the patient or his relatives to
such procedure or therapy. The physician thus bases
his assurance to the patient on his personal assessment
of the patients condition and his knowledge of the
general effects of the agents or procedure that will be
allowed on the patient. Dr. Balmaceda stressed that
the patient or relatives must be informed of all known
side effects based on studies and observations, even if
such will aggravate the patients condition.[45]
Dr. Jaime Tamayo, the orthopaedic surgeon who
operated on Angelicas lower extremity, testified for
the defendants. He explained that in case of malignant
tumors, there is no guarantee that the ablation or
removal of the amputated part will completely cure
the cancer. Thus, surgery is not enough. The mortality
rate of osteosarcoma at the time of modern
chemotherapy and early diagnosis still remains at
80% to 90%. Usually, deaths occur from metastasis,
or spread of the cancer to other vital organs like the
liver, causing systemic complications. The modes of
therapy available are the removal of the primary
source of the cancerous growth and then the residual
cancer cells or metastasis should be treated with
chemotherapy. Dr. Tamayo further explained that
patients with osteosarcoma have poor defense
mechanism due to the cancer cells in the blood
stream. In the case of Angelica, he had previously
explained to her parents that after the surgical
procedure, chemotherapy is imperative so that
metastasis of these cancer cells will hopefully be
addressed. He referred the patient to petitioner

because he felt that petitioner is a competent
oncologist. Considering that this type of cancer is
very aggressive and will metastasize early, it will
cause the demise of the patient should there be no
early intervention (in this case, the patient
developed sepsis which caused her death). Cancer
cells in the blood cannot be seen by the naked eye nor
detected through bone scan. On cross-examination,
Dr. Tamayo stated that of the more than 50 child
patients who had osteogenic sarcoma he had handled,
he thought that probably all of them died within six
months from amputation because he did not see them
anymore after follow-up; it is either they died or had
seen another doctor.[46]
In dismissing the complaint, the trial court held that
petitioner was not liable for damages as she observed
the best known procedures and employed her highest
skill and knowledge in the administration of
chemotherapy drugs on Angelica but despite all
efforts said patient died. It cited the testimony of Dr.
Tamayo who testified that he considered petitioner
one of the most proficient in the treatment of cancer
and that the patient in this case was afflicted with a
very aggressive type of cancer necessitating
chemotherapy as adjuvant treatment. Using the
standard of negligence laid down in Picart v. Smith,
the trial court declared that petitioner has taken the
necessary precaution against the adverse effect of
chemotherapy on the patient, adding that a wrong
decision is not by itself negligence. Respondents were
ordered to pay their unpaid hospital bill in the amount
of P139,064.43.[48]
Respondents appealed to the CA which,
while concurring with the trial courts finding that
there was no negligence committed by the petitioner
in the administration of chemotherapy treatment to
Angelica, found that petitioner as her attending
physician failed to fully explain to the respondents all
the known side effects of chemotherapy. The appellate
court stressed that since the respondents have been
told of only three side effects of chemotherapy, they
readily consented thereto. Had petitioner made known
to respondents those other side effects which gravely
affected their child -- such as carpo-pedal spasm,
sepsis, decrease in the blood platelet count, bleeding,
infections and eventual death -- respondents could
have decided differently or adopted a different course
of action which could have delayed or prevented the
early death of their child.

The CA thus declared:

Hence, this petition.

Plaintiffs-appellants child was suffering from a

malignant disease. The attending physician
recommended that she undergo chemotherapy
treatment after surgery in order to increase her
chances of survival. Appellants consented to the
chemotherapy treatment because they believed in Dr.
Rubi Lis representation that the deceased would have
a strong chance of survival after chemotherapy and
also because of the representation of appellee Dr.
Rubi Li that there were only three possible sideeffects of the treatment. However, all sorts of painful
side-effects resulted from the treatment including the
premature death of Angelica. The appellants were
clearly and totally unaware of these other sideeffects which manifested only during the
chemotherapy treatment. This was shown by the
fact that every time a problem would take place
regarding Angelicas condition (like an unexpected
side-effect manifesting itself), they would
immediately seek explanation from Dr. Rubi
Li. Surely, those unexpected side-effects culminating
in the loss of a love[d] one caused the appellants so
much trouble, pain and suffering.

Petitioner assails the CA in finding her guilty of

negligence in not explaining to the respondents all the
possible side effects of the chemotherapy on their
child, and in holding her liable for actual, moral and
exemplary damages and attorneys fees. Petitioner
emphasized that she was not negligent in the prechemotherapy procedures and in the administration of
chemotherapy treatment to Angelica.

On this point therefore, [w]e find defendant-appellee

Dr. Rubi Li negligent which would entitle plaintiffsappellants to their claim for damages.
WHEREFORE, the instant appeal is hereby
GRANTED. Accordingly, the assailed decision is
hereby modified to the extent that defendant-appellee
Dr. Rubi Li is ordered to pay the plaintiffs-appellants
the following amounts:
Actual damages of P139,064.43, plus P9,828.00
for funeral expenses;

Moral damages of P200,000.00;


Exemplary damages of P50,000.00;


Attorneys fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration
which the appellate court denied.

On her supposed non-disclosure of all possible side

effects of chemotherapy, including death, petitioner
argues that it was foolhardy to imagine her to be allknowing/omnipotent. While the theoretical side
effects of chemotherapy were explained by her to the
respondents, as these should be known to a competent
doctor,petitioner cannot possibly predict how a
particular patients genetic make-up, state of mind,
general health and body constitution would respond to
the treatment. These are obviously dependent on too
many known, unknown and immeasurable variables,
thus requiring that Angelica be, as she was, constantly
and closely monitored during the treatment. Petitioner
asserts that she did everything within her professional
competence to attend to the medical needs of
Citing numerous trainings, distinctions and
achievements in her field and her current position as
co-director for clinical affairs of the Medical
Oncology, Department of Medicine of SLMC,
petitioner contends that in the absence of any clear
showing or proof, she cannot be charged with
negligence in not informing the respondents all the
side effects of chemotherapy or in the pre-treatment
procedures done on Angelica.
As to the cause of death, petitioner insists that
Angelica did not die of platelet depletion but of sepsis
which is a complication of the cancer itself. Sepsis
itself leads to bleeding and death. She explains that
the response rate to chemotherapy of patients with
osteosarcoma is high, so much so that survival rate is
favorable to the patient.Petitioner then points to some
probable consequences if Angelica had not undergone
chemotherapy. Thus, without chemotherapy, other
medicines and supportive treatment, the patient might
have died the next day because of massive infection,
or the cancer cells might have spread to the brain and
brought the patient into a coma, or into the lungs that

the patient could have been hooked to a respirator, or

into her kidneys that she would have to undergo
dialysis. Indeed, respondents could have spent as
much because of these complications. The patient
would have been deprived of the chance to survive the
ailment, of any hope for life and her quality of life
surely compromised. Since she had not been shown to
be at fault, petitioner maintains that the CA erred in
holding her liable for the damages suffered by the
The issue to be resolved is whether the petitioner can
be held liable for failure to fully disclose serious side
effects to the parents of the child patient who died
while undergoing chemotherapy, despite the absence
of finding that petitioner was negligent in
administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical
malpractice or, more appropriately, medical
negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed
by a medical professional which has caused bodily
harm. In order to successfully pursue such a claim, a
patient must prove that a health care provider, in most
cases a physician, either failed to do something which
a reasonably prudent health care provider would have
done, or that he or she did something that a
reasonably prudent provider would not have done;
and that that failure or action caused injury to the
This Court has recognized that medical negligence
cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in
the same general line of practice as defendant
physician or surgeon. The deference of courts to the
expert opinion of qualified physicians stems from the
formers realization that the latter possess unusual
technical skills which laymen in most instances are
incapable of intelligently evaluating, hence the
indispensability of expert testimonies.[52]
In this case, both the trial and appellate courts
concurred in finding that the alleged negligence of
petitioner in the administration of chemotherapy
drugs to respondents child was not proven considering
that Drs. Vergara and Balmaceda, not being
oncologists or cancer specialists, were not qualified to

give expert opinion as to whether petitioners lack of
skill, knowledge and professional competence in
failing to observe the standard of care in her line of
practice was the proximate cause of the patients
death. Furthermore, respondents case was not at all
helped by the non-production of medical records by
the hospital (only the biopsy result and medical bills
were submitted to the court). Nevertheless, the CA
found petitioner liable for her failure to inform the
respondents on all possible side effects of
chemotherapy before securing their consent to the
said treatment.

premised on the fact that patients ordinarily are

persons unlearned in the medical
sciences. Proficiency in diagnosis and therapy is not
the full measure of a physicians responsibility. It is
also his duty to warn of the dangers lurking in the
proposed treatment and to impart information which
the patient has every right to expect. Indeed, the
patients reliance upon the physician is a trust of the
kind which traditionally has exacted obligations
beyond those associated with armslength transactions.
The physician is not expected to give the patient a
short medical education, the disclosure rule only
requires of him a reasonable explanation, which
The doctrine of informed consent within the context
means generally informing the patient in nontechnical
of physician-patient relationships goes far back into
terms as to what is at stake; the therapy alternatives
English common law. As early as 1767, doctors were open to him, the goals expectably to be achieved, and
charged with the tort of battery (i.e., an unauthorized
the risks that may ensue from particular treatment or
physical contact with a patient) if they had not gained no treatment.[59] As to the issue of demonstrating what
the consent of their patients prior to performing a
risks are considered material necessitating disclosure,
surgery or procedure. In the United States, the seminal it was held that experts are unnecessary to a showing
case was Schoendorff v. Society of New York
of the materiality of a risk to a patients decision on
Hospital[53] which involved unwanted treatment
treatment, or to the reasonably, expectable effect of
performed by a doctor. Justice Benjamin Cardozos
risk disclosure on the decision. Such unrevealed risk
oft-quoted opinion upheld the basic right of a patient
that should have been made known must further
to give consent to any medical procedure or
materialize, for otherwise the omission, however
treatment: Every human being of adult years and
unpardonable, is without legal consequence. And, as
sound mind has a right to determine what shall be
in malpractice actions generally, there must be a
done with his own body; and a surgeon who performs causal relationship between the physicians failure to
an operation without his patients consent, commits an divulge and damage to the patient.[60]
assault, for which he is liable in damages.[54] From a
purely ethical norm, informed consent evolved into a
Reiterating the foregoing considerations, Cobbs v.
general principle of law that a physician has a duty to Grant[61] deemed it as integral part of physicians
disclose what a reasonably prudent physician in the
overall obligation to patient, the duty of reasonable
medical community in the exercise of reasonable care disclosure of available choices with respect to
would disclose to his patient as to whatever grave
proposed therapy and of dangers inherently and
risks of injury might be incurred from a proposed
potentially involved in each. However, the physician
course of treatment, so that a patient, exercising
is not obliged to discuss relatively minor risks
ordinary care for his own welfare, and faced with a
inherent in common procedures when it is common
choice of undergoing the proposed treatment, or
knowledge that such risks inherent in procedure of
alternative treatment, or none at all, may intelligently very low incidence. Cited as exceptions to the rule
exercise his judgment by reasonably balancing the
that the patient should not be denied the opportunity
probable risks against the probable benefits.[55]
to weigh the risks of surgery or treatment are
emergency cases where it is evident he cannot
Subsequently, in Canterbury v. Spence[56] the court
evaluate data, and where the patient is a child or
observed that the duty to disclose should not be
incompetent.[62] The court thus concluded that the
limited to medical usage as to arrogate the decision on patients right of self-decision can only be effectively
revelation to the physician alone. Thus, respect for the exercised if the patient possesses adequate
patients right of self-determination on particular
information to enable him in making an intelligent
therapy demands a standard set by law for physicians choice. The scope of the physicians communications
rather than one which physicians may or may not
to the patient, then must be measured by the patients
impose upon themselves.[57] The scope of disclosure is need, and that need is whatever information is

material to the decision. The test therefore for

determining whether a potential peril must be
divulged is its materiality to the patients decision. [63]

medical procedures, but such conclusion can be

reasonably drawn from the general side effects of
chemotherapy already disclosed.

Cobbs v. Grant further reiterated the pronouncement

in Canterbury v. Spence that for liability of the
physician for failure to inform patient, there must be
causal relationship between physicians failure to
inform and the injury to patient and such connection
arises only if it is established that, had revelation been
made, consent to treatment would not have been

As a physician, petitioner can reasonably expect the

respondents to have considered the variables in the
recommended treatment for their daughter afflicted
with a life-threatening illness. On the other hand, it is
difficult to give credence to respondents claim that
petitioner told them of 95% chance of recovery for
their daughter, as it was unlikely for doctors like
petitioner who were dealing with grave conditions
such as cancer to have falsely assured patients of
chemotherapys success rate.Besides, informed
consent laws in other countries generally require only
a reasonable explanation of potential harms, so
specific disclosures such as statistical data, may not
be legally necessary.[65]

There are four essential elements a plaintiff must

prove in a malpractice action based upon the doctrine
of informed consent: (1) the physician had a duty to
disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as a direct and
proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have
consented to; and (4) plaintiff was injured by the
proposed treatment. The gravamen in an informed
consent case requires the plaintiff to point to
significant undisclosed information relating to the
treatment which would have altered her decision to
undergo it.[64]
Examining the evidence on record, we hold that there
was adequate disclosure of material risks inherent in
the chemotherapy procedure performed with the
consent of Angelicas parents. Respondents could not
have been unaware in the course of initial treatment
and amputation of Angelicas lower extremity, that her
immune system was already weak on account of the
malignant tumor in her knee. When petitioner
informed the respondents beforehand of the side
effects of chemotherapy which includes lowered
counts of white and red blood cells, decrease in blood
platelets, possible kidney or heart damage and skin
darkening, there is reasonable expectation on the part
of the doctor that the respondents understood very
well that the severity of these side effects will not be
the same for all patients undergoing the procedure. In
other words, by the nature of the disease itself, each
patients reaction to the chemical agents even with pretreatment laboratory tests cannot be precisely
determined by the physician. That death can possibly
result from complications of the treatment or the
underlying cancer itself, immediately or sometime
after the administration of chemotherapy drugs, is a
risk that cannot be ruled out, as with most other major

The element of ethical duty to disclose material risks

in the proposed medical treatment cannot thus be
reduced to one simplistic formula applicable in all
instances.Further, in a medical malpractice action
based on lack of informed consent, the plaintiff must
prove both the duty and the breach of that duty
through expert testimony.[66] Such expert testimony
must show the customary standard of care of
physicians in the same practice as that of the
defendant doctor.[67]
In this case, the testimony of Dr. Balmaceda who is
not an oncologist but a Medical Specialist of the
DOHs Operational and Management Services charged
with receiving complaints against hospitals, does not
qualify as expert testimony to establish the standard
of care in obtaining consent for chemotherapy
treatment. In the absence of expert testimony in this
regard, the Court feels hesitant in defining the scope
of mandatory disclosure in cases of malpractice based
on lack of informed consent, much less set a standard
of disclosure that, even in foreign jurisdictions, has
been noted to be an evolving one.
As society has grappled with the juxtaposition
between personal autonomy and the medical
profession's intrinsic impetus to cure, the law defining
adequate disclosure has undergone a dynamic
evolution. A standard once guided solely by the
ruminations of physicians is now dependent on what a
reasonable person in the patients position regards as
significant. This change in perspective is especially

important as medical breakthroughs move
practitioners to the cutting edge of technology, ever
encountering new and heretofore unimagined
treatments for currently incurable diseases or
ailments. An adaptable standard is needed to account
for this constant progression. Reasonableness
analyses permeate our legal system for the very
reason that they are determined by social norms,
expanding and contracting with the ebb and flow of
societal evolution.

As we progress toward the twenty-first century, we

now realize that the legal standard of disclosure is
not subject to construction as a categorical
imperative.Whatever formulae or processes we adopt
are only useful as a foundational starting point; the
particular quality or quantity of disclosure will
remain inextricably bound by the facts of each
case. Nevertheless, juries that ultimately determine
whether a physician properly informed a patient are
inevitably guided by what they perceive as the
common expectation of the medical consumera
reasonable person in the patients position when
deciding to accept or reject a recommended medical
procedure.[68] (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari

is GRANTED. The Decision dated June 15, 2004 and
the Resolution dated September 1, 2004 of the Court
of Appeals in CA-G.R. CV No. 58013 are SET
The Decision dated September 5, 1997 of
the Regional Trial Court of Legazpi City, Branch 8, in
Civil Case No. 8904 is REINSTATED and

The Case
This is an appeal from the March 25, 2010
Decision1 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 00020, which affirmed the August 26,
2004 Decision in Criminal Case No. CB-02-195 of
the Regional Trial Court (RTC), Branch 37 in
Caibiran, Naval, Biliran.2 The RTC convicted accused
Jimmy Alverio (Alverio) of rape.
The Facts
The charge against Alverio stemmed from the
following Information:
That on or about the 3rd day of June, 2002, at about
2:00 oclock early dawn, more or less, at
[PPP],3 Philippines, and within the jurisdiction of this
Honorable Court, while [AAA] was on her way to her
grandmothers house from the benefit dance, herein
accused, a cousin of herein complainant, with lewd
designs, and by means of force and intimidation, get
hold of her arm and did then and there drag her to the
back of the barangay hall, by holding her hair and
forcibly laid her to the ground, willfully, unlawfully
and feloniously poked her a short bladed weapon
known as pisao forcibly took off her pants and panty
and succeeded in having carnal knowledge with her
against her will to her damage and prejudice.
Contrary to law.4
On July 3, 2003, Alverio, with the assistance of his
counsel de oficio, was arraigned, and he pleaded "not
guilty" to the charge against him. After the pre-trial,
trial on the merits ensued.

No costs.


G.R. No. 194259


JIMMY ALVERIO, Accused-Appellant.

March 16, 2011

During the trial, the prosecution offered the sole

testimony of the private complainant. On the other
hand, the defense presented accused Alverio, Henry
Toledo (Toledo), and Lily Toledo as its witnesses.

The Prosecutions Version of Facts

In the afternoon of June 2, 2002, AAA, along with her
friends Belen Sabanag (Sabanag) and Aileen
Sinangote (Sinangote), went to the house of her
grandmother to attend a dance event.5 At around 8:30
in the evening, they proceeded to the dance hall
because the dance would start at around 9
oclock.6 During the dance, Sabanag and Sinangote
danced with Alverio but AAA did not.7 At 2 oclock in
the morning of June 3, 2002, AAA noticed that her
friends were no longer at the dance so she decided to
go home to her grandmothers house.8
As she was nearing the barangay hall, Alverio
suddenly appeared and took hold of AAA. She tried to
resist him but he was too strong and he managed to
pull her away. AAA started to cry while she was being
dragged towards the back of the barangay
hall.9 There, Alverio held her hair, undressed her, and
started to kiss her.10 AAA kept on resisting and even
punched Alverio after he kissed her, at which point,
Alverio told her that it was painful and that he might
retaliate if she continued.11 This caused AAA to stop
resisting and Alverio then proceeded to insert his
penis in her vagina repeatedly.12
After having carnal knowledge with her, Alverio
stood up and put on his clothes. He warned AAA that
if she told anyone about what happened, he will kill
her.13 After threatening her, he left.
During this entire incident, Alverio was armed with a
knife which he used to poke AAAs side.
Dazed, AAA could not muster enough strength to go
home. She just sat on the road beside the barangay
hall until 5 oclock in the morning when her Uncle
Intoy passed by. He brought her home to her parents
but she did not tell him anything. Upon reaching
home, AAA told her parents about what happened.14
Version of the Defense

barangay chapel. At 8:30 in the evening, the dance

started. He danced with some persons whose names
he could no longer recall.16But he categorically
remembered that he did not see AAA in the dance
At 12:00 midnight, Alverio and Toledo walked home
to Toledos house, where Alverio was staying.18 On
their way home, they passed by the barangay
hall.19 Upon reaching home, they slept and woke up at
5:30 in the morning of June 3, 2002.20
In his testimony, Alverio admitted that he and AAA
are cousins, their mothers being sisters.21
His testimony was corroborated by Toledo22 and
Toledos mother, Lily Toledo.23
Ruling of the Trial Court
After trial, the RTC convicted Alverio. The
dispositive portion of its August 26, 2004 Decision
WHEREFORE, premises considered, judgment is
hereby rendered finding the accused JIMMY
ALVERIO guilty beyond reasonable doubt of the
crime of rape. With no aggravating or mitigating
circumstance, he is sentenced to the lesser penalty of
reclusion perpetua; to indemnify [AAA] Fifty
Thousand (P50,000.00) Pesos; and to pay the costs.
On appeal to the CA, Alverio disputed the trial courts
finding of his guilt beyond reasonable doubt of the
crime charged. He argued that the presumption of
innocence should prevail especially considering that
the prosecution only had a single testimony to support
the charge of rape.
Ruling of the Appellate Court

Alverios defense, on the other hand, was confined to

his denial of the accusation and an alibi, to wit:

On March 25, 2010, the CA affirmed the judgment of

the RTC. The dispositive portion of the CA Decision

Sometime around 7:30 in the evening of June 2, 2002,

Alverio recalled that he was in the barangay chapel
with his friend, Toledo, waiting for the dance to
begin.15 The dance hall was just adjacent to the


of the Regional Trial Court, Branch 37, Caibiran,
Naval, Biliran in Criminal Case No. CB-02-195
convicting the accused-appellant is AFFIRMED with

MODIFICATION in that he is also hereby adjudged
liable to pay the victim the amount of Php50,000.00
as moral damages.
His penalty of reclusion perpetua and the award of
civil indemnity of Php50,000.00 stands.
Costs against the accused-appellant.
The Issue

x x x (1) an accusation of rape can be made with

facility and while the accusation is difficult to prove,
it is even more difficult for the person accused,
though innocent, to disprove the charge; (2)
considering that, in the nature of things, only two
persons are usually involved in the crime of rape, the
testimony of the complainant should be scrutinized
with great caution; and (3) the evidence of the
prosecution must stand or fall on its own merit, and
cannot be allowed to draw strength from the weakness
of the evidence for the defense.

Moreover, in that same case, this Court held that "in

Alverio now comes before this Court with the lone
cases involving the prosecution for forcible rape x x x
assignment of error contending that "[t]he trial court
corroboration of the victims testimony is not a
gravely erred in finding the accused-appellant guilty
necessary condition to a conviction for rape where the
beyond reasonable doubt of rape."26
victims testimony is credible, or clear and convincing
or sufficient to prove the elements of the offense
The Courts Ruling
beyond a reasonable doubt."28 As such, appellate
courts generally do not disturb the findings of the trial
We sustain Alverios conviction.
court with regard to the assessment of the credibility
of witnesses,29 the reason being that the trial court has
In his Brief, Alverio argues that the trial court should
the "unique opportunity to observe the witnesses first
have taken the lone testimony of the complainant with hand and note their demeanor, conduct and attitude
caution and that the testimony should have been
under grilling examination."30 More importantly,
weighed carefully, taking into consideration the
courts generally give full credence to the testimony of
constitutional precept that in all criminal prosecutions, a complainant for rape, especially one who is only a
the accused must be presumed innocent unless the
contrary is proved.
Alverio raises three (3) grounds in support of his
argument. First, he assails the trial court for giving
credence to the sole testimony of the victim. He
claims that the prosecution should have presented
other witnesses to corroborate the testimony of the
victim. Second, he contends that the medical
certificate presented as evidence was not testified to
by the signatory himself and should therefore not be
considered as corroborative evidence. Lastly, he
claims that the trial court gravely erred in convicting
him of the crime of rape for failure of the prosecution
to prove his guilt beyond reasonable doubt.
After a careful perusal of the records of this case,
however, the Court is satisfied that the prosecutions
evidence sufficiently established Alverios guilt with
moral certainty.

In People v. Malate, We reiterated the principles

with which courts are guided in determining the guilt
or innocence of the accused in rape cases, viz:

The exceptions to this rule are when the trial courts

findings of facts and conclusions are not supported by
the evidence on record, or when certain facts of
substance and value likely to change the outcome of
the case have been overlooked by the lower court, or
when the assailed decision is based on a
misapprehension of facts.32However, this Court finds
none of these exceptions present in the instant case.

Q Where were you already walking did Jimmy

Alverio suddenly held you?

A He continued kissing me.

A Near Brgy. Hall of Brgy. Maurang.
Q After kissing you what next follow?
Q What happened next after you were held by Jimmy
Alverio near the brgy. hall of Maurang?
A He tried to pull me but then I resisted, and Jimmy
insisted by pulling me until I cried.
Q Then even if you were already crying what next

I would like to request Your Honor that the

prosecution would discontinue and encouraging very
much because its up to the witness to answer Your
Honor the question. Since previously it would [seem]
that the witness could be able to answer only after so
much question

Q Did you in fact drag to the brgy. hall?

A Yes sir.
Q While you were at the back of the brgy. hall can
you tell this Honorable Court what happened?

Your Honor please according to the circular on

examining minors we will to give full support and we
to understand the minors especially if victims of
minor cases.

A [He] held my hair and he tried to undressed me but

I resisted.

It was not established that she is a minor, Your Honor.

Q Since he tried to undressed [sic] you and you were

resisted [sic] was he able or was he successful in
undressing you?


A Yes sir.


Q Despite of your resistance?

Q Now you said that you were undressed by Jimmy

Alverio, do you mean to say that you were already
naked when you said undressed?

A Yes sir.
Q When you were already undressed what happened,
can you tell this to the Honorable Court?
A He tried kissed [sic] me several times and I resisted
and I boxed him.


Q After you have boxed him after kissing you what

next happened?

A When I was walking I was suddenly held by Jimmy



A He drag me towards the back of the Brgy hall.

The victim testified in a steadfast and straightforward

manner, to wit:

Q Now can you tell now [since] there are no more

persons around except you and the accused can tell to
the Court, or were you able to reach in the house of
your lola?

Q How about Jimmy what was he doing?

She is 14 years old.

A Yes sir.
Q And when Jimmy Alverio kissing you several times
were you already naked?
A Yes sir.

A He said that is painful I might retaliate with you.

Q What did Jimmy do more while he was kissing
several times and you were naked?

Q After hearing on that what did Jimmy had done to



A I just cried I did not mind him anymore.

At this juncture Your Honor the witness is crying.


How many times did Jimmy insert his penis to your


rape.34 The gravamen of rape is carnal knowledge of a

woman through force and intimidation.35

from the finality of judgment until fully paid; and to

pay the costs.

A three (3) times.

The elements needed to prove the crime of rape under

paragraph 1(a) of Article 266-A of the Revised Penal
Code are: (1) the offender is a man; (2) the offender
had carnal knowledge of a woman; and (3) the act is
accomplished by using force or intimidation. All these
elements were sufficiently proved by the prosecution.
The testimony of AAA overwhelmingly proves that
Alverio raped her with the use of force and


Furthermore, Alverios defense of alibi cannot stand

versus the positive identification of AAA. Nothing is
more settled in criminal law jurisprudence than the
rule that alibi and denial cannot prevail over the
positive and categorical testimony and identification
of the accused by the complainant.36


Q And when you were naked was Jimmy also naked?

A Yes sir.

Q After the three (3) times intercourse with you what

did Jimmy do to you?

Q You were naked and Jimmy Alverio was also naked

and Jimmy Alverio was kissing you so many times,
what more did Jimmy Alverio do to you?

A He stood up and he dressed himself and he left me.

A He inserted his penis.

A He told me that if you will told anybody in your

family, your mother and your father I will kill you.

Q Did he not leave words to you?

Q What were your position, were you standing, or you

were lying down?
Q Was she have arm [sic] at that time of the incident?
A Lying position.

A Yes sir.

Q Or something was placed on the ground?

Q What arm or firearm or what?

A On the ground.

A a knife.


Q Did he use that in forcing you to do the sexual acts?

Alright Pros. Joboco you can proceed the continuation A Yes sir.
of your direct examination.
Q By what means did he threatened you?
A He poke it at my side.
Q When you said when Jimmy Alverio was inserted
Q Now what would you mean, he poke it at my side,
his penis where was inserted?
what did you do?
A to my vagina.
A I remain there crying.33
Q And when Jimmy inserted his penis to your vagina
It is strikingly clear from the above transcript that
what did you feel?
AAAs testimony was very coherent and candid. Thus,
A I felt pain.
We find no reason to overturn the findings of the trial
Q And when you felt pain what did you do?
In addition, Alverio submits that although the medical
A I kept on crying.
certificate was presented as evidence, its contents
were never testified to by the signatory himself and,
as such, cannot be considered as corroborative of the
claim of the victim that she was raped.
I think that would be all Your Honor I think the
witness already crying.
Such argument, however, cannot prosper. Medical
evidence is dispensable and merely corroborative in
proving the crime of rape. Besides, a medical
certificate is not even necessary to prove the crime of

Accordingly, We find that the prosecution has

discharged its burden of proving the guilt of Alverio
beyond reasonable doubt.
As to the award of damages, the CA was correct in
awarding PhP 50,000 as moral damages without need
of proof. However, in line with current
jurisprudence,37 an additional award of PhP 30,000 as
exemplary damages should likewise be given, as well
as interest of six percent (6%) per annum on all
damages awarded from the finality of judgment until
fully paid.
WHEREFORE, the appeal is DENIED. The CA
Decision in CA-G.R. CR-H.C. No. 00020 finding
accused-appellant Jimmy Alverio guilty of the crime
modified, the ruling of the trial court should read as
WHEREFORE, premises considered, judgment is
hereby rendered finding the accused JIMMY
ALVERIO guilty beyond reasonable doubt of the
crime of rape. With no aggravating or mitigating
circumstance, he is sentenced to the lesser penalty of
reclusion perpetua; to pay [AAA] Fifty Thousand
(P50,000.00) Pesos as civil indemnity, Fifty Thousand
(P50,000.00) as moral damages and Thirty Thousand
(P30,000.00) as exemplary damages with interest of
six percent (6%) per annum on all awards of damages

[G.R. No. 130612. May 11, 1999]

JUNIOR OTOT, accused-appellant.

This case is here on appeal from the decision[1] of the

Regional Trial Court of Dagupan City (Branch 57),
finding accused-appellant guilty of rape with
homicide and sentencing him to death, and to
indemnify the heirs of the victim in the amount
of P480,000.00, and to pay the costs.
The facts hark back to the afternoon of October 17,
1996, at around 4 oclock, when the body of six-year
old Jennifer Domantay was found sprawled amidst a
bamboo grove in Guilig, Malasiqui, Pangasinan. The
childs body bore several stab wounds. Jennifer had
been missing since lunch time.
The medical examination conducted the following
day by Dr. Ma. Fe Leticia Macaranas, the rural health
physician of Malasiqui, showed that Jennifer died of
multiple organ failure and hypovolemic shock
secondary to 38 stab wounds at the back. Dr.
Macaranas found no lacerations or signs of
inflammation of the outer and inner labia and the
vaginal walls of the victims genitalia, although the
vaginal canal easily admitted the little finger with
minimal resistance. Noting possible commission of
acts of lasciviousness, Dr. Macaranas recommended
an autopsy by a medico-legal expert of the NBI.[2]
The investigation by the Malasiqui police pointed to
accused-appellant Bernardino Domantay, a cousin of
the victims grandfather, as the lone suspect in the
gruesome crime. At around 6:30 in the evening of that
day, police officers Montemayor, de la Cruz, and de
Guzman of the Malasiqui Philippine National Police
(PNP) picked up accused-appellant at the Malasiqui
public market and took him to the police station
where accused-appellant, upon questioning by SPO1

Antonio Espinoza, confessed to killing Jennifer
Domantay. He likewise disclosed that at around 3:30
that afternoon, he had given the fatal weapon used, a
bayonet, to Elsa and Jorge Casingal, his aunt and
uncle respectively, in Poblacion Sur, Bayambang,
Pangasinan. The next day, October 18, 1996, SPO1
Espinoza and another policeman took accusedappellant to Bayambang and recovered the bayonet
from a tricycle belonging to the Casingal spouses. The
police officers executed a receipt to evidence the
confiscation of the weapon.[3]
On the basis of the post-mortem findings of Dr.
Macaranas, SPO4 Juan Carpizo, the Philippine
National Police chief investigator at Malasiqui, filed,
on October 21, 1996, a criminal complaint for murder
against accused-appellant before the Municipal Trial
Court (MTC) of Malasiqui. On October 25, 1996, Dr.
Ronald Bandonill, medico-legal expert of the NBI,
performed an autopsy on the embalmed body of
Jennifer. The result of his examination of the victims
genitalia indicated that the childs hymen had been
completely lacerated on the right side. Based on this
finding, SPO4 Carpizo amended the criminal
complaint against accused-appellant to rape with
homicide. Subsequently, the following information
was filed:[4]
That on or about the 17th day of October, 1996, in the
afternoon, in barangay Guilig, Municipality of
Malasiqui, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design and armed
with a bayonnete, did then and there, wilfully,
unlawfully and feloniously have sexual intercourse
with Jennifer Domantay, a minor of 6 years old
against her will and consent, and on the same
occasion, the said accused with intent to kill, then and
there, wilfully, unlawfully and feloniously stab with
the use of a bayonnete, the said Jennifer Domantay,
inflicting upon her multiple stab wounds, which
resulted to her death, to the damage and prejudice of
her heirs.

Edward Domantay testified that in the morning of

October 17, 1996, accused-appellant and his two
brothers-in-law, Jaime Caballero and Daudencio
Macasaeb, had a round of drinks in front of the latters
house in Guilig, Malasiqui, Pangasinan. Edward
Domantay said that he was in front of Macasaebs
house, tending to some pigeons in his yard.[5] After the
group had consumed several bottles of San Miguel
gin, accused-appellant gave money to Edward
Domantay and asked him to buy two bottles of gin
and a bottle of Sprite.[6] Edward said he joined the
group and sat between Daudencio Macasaeb and
accused-appellant.[7] Edward said that accusedappellant, who, apparently had one too many then,
rolled up his shirt and said: No diad Antipolo tan
L[i]pa et walay massacre, diad Guilig wala, walay
massacren kod dia, walay onakis-akis (In Antipolo
and Lipa, there were massacres; here in Guilig, there
will also be a massacre. I will massacre somebody
here, and they will cry and cry). Edward Domantay
saw that tucked in the left side of accused-appellants
waistline was a bayonet without a cover handle.[8] It
was not the first time that Edward had seen accusedappellant with the knife as the latter usually carried it
with him.[9]
Jiezl Domantay, 10, likewise testified. She said that,
at about 2 oclock in the afternoon on October 17,
1996, she and four other children were playing in
front of their house in Guilig, Malasiqui, Pangasinan.
Jiezl saw accused-appellant and Jennifer Domantay
walking towards the bamboo grove of Amparo
Domantay where Jennifers body was later found.
Accused-appellant was about two meters ahead of
Jennifer. The bamboo grove was about 8 to 10 meters
from the house of Jiezl Domantay.[10]

Lorenzo Domantay, a relative of the victim,

corroborated Jiezls testimony that accused-appellant
had gone to Amparo Domantays bamboo grove in the
afternoon of October 17, 1996.Lorenzo said that that
afternoon, on his way to his farm, he saw accusedappellant about 30 meters away, standing at the spot
in the bamboo grove where Jennifers body was later
At the trial, the prosecution presented seven
found.Accused-appellant appeared restless and
witnesses, namely, Edward, Jiezl, Lorenzo, all
worried as he kept looking around. However, as
surnamed Domantay, Joselito Mejia, Antonio
Lorenzo was in a hurry, he did not try to find out why
Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to accused-appellant appeared to be nervous.[11]
establish its charge that accused-appellant had raped
and killed Jennifer Domantay.
Prosecution witness Joselito Mejia, a tricycle driver,
said that, in the afternoon of October 17, 1996, he was

about to take his lunch at home in Alacan, a

neighboring barangay about half a kilometer from
Guilig, when accused-appellant implored Mejia to
take him to Malasiqui at once. Mejia told accusedappellant that he was going to take his lunch first, but
the latter pleaded with him, saying they will not be
gone for long. Mejia, therefore, agreed. Mejia noticed
that accused-appellant was nervous and
afraid. Accused-appellant later changed his
mind. Instead of going to the town proper, he alighted
near the Mormons church, outside Malasiqui.[12]
In addition, the prosecution presented SPO1 Antonio
Espinoza and Celso Manuel who testified that, on
separate occasions, accused-appellant had confessed
to the brutal killing of Jennifer Domantay.
SPO1 Espinoza testified that he investigated accusedappellant after the latter had been brought to the
Malasiqui police station in the evening of October 17,
1996. Before he commenced his questioning, he
apprised accused-appellant of his constitutional right
to remain silent and to have competent and
independent counsel, in English, which was later
translated into Pangasinense.[13]According to SPO1
Espinoza, accused-appellant agreed to answer the
questions of the investigator even in the absence of
counsel and admitted killing the victim. Accusedappellant also disclosed the location of the bayonet he
used in killing the victim.[14] On cross-examination,
Espinoza admitted that at no time during the course of
his questioning was accused-appellant assisted by
counsel. Neither was accused-appellants confession
reduced in writing.[15] Espinozas testimony was
admitted by the trial court over the objection of the
Celso Manuel, for his part, testified that he is a radio
reporter of station DWPR, an AM station based in
Dagupan City. He covers the third district of
Pangasinan, including Malasiqui.Sometime in
October 1996, an uncle of the victim came to
Dagupan City and informed the station about Jennifer
Domantays case.[16] On October 23, 1996, Manuel
went to Malasiqui to interview accused-appellant who
was then detained in the municipal jail. He described
what transpired during the interview thus:[17]
Q Did you introduce yourself as a media practitioner?

A Yes, sir.
Q How did you introduce yourself to the accused?
A I showed to Bernardino Domantay alias Junior Otot
my I.D. card and I presented myself as a media
practitioner with my tape recorder [in] my hand, sir.
Q What was his reaction to your request for an
A He was willing to state what had happened, sir.
Q What are those matters which you brought out in
that interview with the accused Bernardino Domantay
alias Junior Otot?
A I asked him what was his purpose for human
interests sake as a reporter, why did he commit that
alleged crime. And I asked also if he committed the
crime and he answered yes. Thats it.
Q You mentioned about accused admitting to you on
the commi[ssion] of the crime, how did you ask him
A I asked him very politely.
Q More or less what have you asked him on that
particular matter?
A I asked Junior Otot, Bernardino Domantay, Kung
pinagsisisihan mo ba ang iyong ginawa? Opo sabi
niya, Ibig mo bang sabihin Jun, ikaw ang pumatay
kay Jennifer?, Ako nga po. The [l]ast part of my
interview, Kung nakikinig ang mga magulang ni
Jennifer, ano ang gusto mong iparating?, kung gusto
nilang makamtan ang hustisya ay tatanggapin
ko. That is what he said, and I also asked Junior Otot,
what was his purpose, and he said, it was about the
boundary dispute, and he used that little girl in his
On cross-examination, Manuel explained that the
interview was conducted in the jail, about two to three
meters away from the police station. An uncle of the
victim was with him and the nearest policemen

present were about two to three meters from him,
including those who were in the radio room.[18] There
was no lawyer present. Before interviewing accusedappellant, Manuel said he talked to the chief of police
and asked permission to interview accused-appellant.
On questioning by the court, Manuel said that it
was the first time he had been called to testify
regarding an interview he had conducted.[20] As in the
case of the testimony of SPO1 Espinoza, the defense
objected to the admission of Manuels testimony, but
the lower court allowed it.
Dr. Bandonill, the NBI medico-legal who conducted
an autopsy of the victim on October 25, 1996,
testified that Jennifer Domantay died as a result of the
numerous stab wounds she sustained on her back,
the average depth of which was six inches.[22] He
opined that the wounds were probably caused by a
pointed sharp-edged instrument.[23] He also noted
contusions on the forehead, neck, and breast bone of
the victim.[24] As for the results of the genital
examination of the victim, Dr. Bandonill said he
found that the laceration on the right side of the
hymen was caused within 24 hours of her death. He
added that the genital area showed signs of
Pacifico Bulatao, the photographer who took the
pictures of the scene of the crime and of the victim
after the latters body was brought to her parents
house, identified and authenticated the five pictures
(Exhibits A, B, C, D, and E) offered by the
The defense then presented accused-appellant as its
lone witness. Accused-appellant denied the
allegations against him. He testified he is an uncle of
Jennifer Domantay (he and her grandfather are
cousins) and that he worked as a janitor at the
Malasiqui Municipal Hall. He said that at around 1
oclock in the afternoon of October 17, 1996, he was
bathing his pigs outside the house of his brother-inlaw Daudencio Macasaeb in Guilig, Malasiqui,
Pangasinan. He confirmed that Daudencio was then
having drinks in front of his (Macasaebs) house.
Accused-appellant claimed, however, that he did not
join in the drinking and that it was Edward Domantay,
whom the prosecution had presented as witness, and a
certain Jaime Caballero who joined the party. He also
claimed that it was he whom Macasaeb had requested
to buy some more liquor, for which reason he gave

money to Edward Domantay so that the latter could

get two bottles of gin, a bottle of Sprite, and a pack of
cigarettes.[26] He denied Edward Domantays claim that
he (accused-appellant) had raised his shirt to show a
bayonet tucked in his waistline and that he had said he
would massacre someone in Guilig.[27]
Accused-appellant also confirmed that, at about 2
oclock in the afternoon, he went to Alacan passing on
the trail beside the bamboo grove of Amparo
Domantay. But he said he did not know that Jennifer
Domantay was following him. He further confirmed
that in Alacan, he took a tricycle to Malasiqui. The
tricycle was driven by Joselito Mejia. He said he
alighted near the Mormon church, just outside of the
town proper of Malasiqui to meet his brother. As his
brother did not come, accused-appellant proceeded to
town and reported for work. That night, while he was
in the Malasiqui public market, he was picked up by
three policemen and brought to the Malasiqui police
station where he was interrogated by SPO1 Espinoza
regarding the killing of Jennifer Domantay. He denied
having owned to the killing of Jennifer Domantay to
SPO1 Espinoza. He denied he had a grudge against
the victims parents because of a boundary dispute.
With respect to his extrajudicial confession to
Celso Manuel, he admitted that he had been
interviewed by the latter, but he denied that he ever
admitted anything to the former.[29]
As already stated, the trial court found accusedappellant guilty as charged. The dispositive portion of
its decision reads:[30]
WHEREFORE, in light of all the foregoing, the Court
hereby finds the accused, Bernardino Domantay @
Junior Otot guilty beyond reasonable doubt with the
crime of Rape with Homicide defined and penalized
under Article 335 of the Revised Penal Code in
relation and as amended by Republic Act No. 7659
and accordingly, the Court hereby sentences him to
suffer the penalty of death by lethal injection, and to
indemnify the heirs of the victim in the total amount
of Four Hundred Eighty Thousand Pesos
(P480,000.00),[31] and to pay the costs.
In this appeal, accused-appellant alleges that:[32]


First. Accused-appellant contends that his alleged
confessions to SPO1 Antonio Espinoza and Celso
Manuel are inadmissible in evidence because they had
been obtained in violation of Art. III, 12(1) of the
Constitution and that, with these vital pieces of
evidence excluded, the remaining proof of his alleged
guilt, consisting of circumstantial evidence, is
inadequate to establish his guilt beyond reasonable
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights
cannot be waived except in writing and in the
presence of counsel.
(3) Any confession or admission obtained in violation
of this section or section 17 hereof shall be
inadmissible in evidence.
This provision applies to the stage of custodial
investigation, that is, when the investigation is no
longer a general inquiry into an unsolved crime but
starts to focus on a particular person as a suspect.
R.A. No. 7438 has extended the constitutional
guarantee to situations in which an individual has not
been formally arrested but has merely been invited for
Decisions[36] of this Court hold that for an
extrajudicial confession to be admissible, it must
satisfy the following requirements: (1) it must be
voluntary; (2) it must be made with the assistance of

competent and independent counsel; (3) it must be

express; and (4) it must be in writing.
In the case at bar, when accused-appellant was
brought to the Malasiqui police station in the evening
of October 17, 1996,[37] he was already a suspect, in
fact the only one, in the brutal slaying of Jennifer
Domantay. He was, therefore, already under custodial
investigation and the rights guaranteed in Art. III,
12(1) of the Constitution applied to him. SPO1
Espinoza narrated what transpired during accusedappellants interrogation:[38]
[I] interrogated Bernardino Domantay, prior to the
interrogation conducted to him, I informed him of
his constitutional right as follows; that he has the right
to remain silent; that he has the right to a competent
lawyer of his own choice and if he can not afford [a
counsel] then he will be provided with one, and
further informed [him] that all he will say will be
reduced into writing and will be used the same in the
proceedings of the case, but he told me that he will
cooperate even in the absence of his counsel; that he
admitted to me that he killed Jennifer Domantay, and
he revealed also the weapon used [and] where he gave
[it] to.
But though he waived the assistance of counsel, the
waiver was neither put in writing nor made in the
presence of counsel. For this reason, the waiver is
invalid and his confession is inadmissible. SPO1
Espinozas testimony on the alleged confession of
accused-appellant should have been excluded by the
trial court. So is the bayonet inadmissible in evidence,
being, as it were, the fruit of the poisonous tree. As
explained in People v. Alicando:[39]
. . . According to this rule, once the primary
source (the tree) is shown to have been unlawfully
obtained, any secondary or derivative evidence (the
fruit) derived from it is also inadmissible.Stated
otherwise, illegally seized evidence is obtained as a
direct result of the illegal act, whereas the "fruit of the
poisonous tree is at least once removed from the
illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be
used to gain other evidence because the originally
illegal obtained evidencetaints all evidence
subsequently obtained.

We agree with the Solicitor General, however, that
accused-appellants confession to the radio reporter,
Celso Manuel, is admissible. In People v. Andan,
the accused in a rape with homicide case confessed
to the crime during interviews with the media. In
holding the confession admissible, despite the fact
that the accused gave his answers without the
assistance of counsel, this Court said:[41]
[A]ppellants [oral] confessions to the newsmen are
not covered by Section 12(1) and (3) of Article III of
the Constitution. The Bill of Rights does not concern
itself with the relation between a private individual
and another individual. It governs the relationship
between the individual and the State. The prohibitions
therein are primarily addressed to the State and its
Accused-appellant claims, however, that the
atmosphere in the jail when he was interviewed was
tense and intimidating and was similar to that which
prevails in a custodial investigation.[42]We are not
persuaded. Accused-appellant was interviewed while
he was inside his cell. The interviewer stayed outside
the cell and the only person besides him was an uncle
of the victim.Accused-appellant could have refused to
be interviewed, but instead, he agreed. He answered
questions freely and spontaneously. According to
Celso Manuel, he said he was willing to accept the
consequences of his act.
Celso Manuel admitted that there were indeed some
police officers around because about two to
three meters from the jail were the police station and
the radio room.[43] We do not think the presence of the
police officers exerted any undue pressure or
influence on accused-appellant and coerced him
into giving his confession.
Accused-appellant contends that it is . . . not
altogether improbable for the police investigators to
ask the police reporter (Manuel) to try to elicit some
incriminating information from the accused.[44] This is
pure conjecture. Although he testified that he had
interviewed inmates before, there is no evidence to
show that Celso was a police beat reporter. Even
assuming that he was, it has not been shown that, in
conducting the interview in question, his purpose was
to elicit incriminating information from accusedappellant. To the contrary, the media are known to

take an opposite stance against the government by

exposing official wrongdoings.

followed by the victim, at around 2 oclock in the

afternoon on October 17, 1996, Lorenzo said he saw
accused-appellant standing near the bamboo grove at
Indeed, there is no showing that the radio reporter was about the same time.
acting for the police or that the interview was
conducted under circumstances where it is apparent
These witnesses, however, did not testify concerning
that accused-appellant confessed to the killing out of
what they saw at exactly the same time. What they
fear. As already stated, the interview was conducted
told the court was what they had seen at around 2
on October 23, 1996, 6 days after accused-appellant
oclock in the afternoon. There could have been a
had already confessed to the killing to the police.
difference in time, however little it was, between the
time Jiezl saw accused-appellant and the victim
Accused-appellants extrajudicial confession is
walking and the time Lorenzo saw accused-appellant
corroborated by evidence of corpus delicti, namely,
near the place where the victims body was later
the fact of death of Jennifer Domantay. In addition,
found. Far from contradicting each other, these
the circumstantial evidence furnished by the other
witnesses confirmed what each had said each one
prosecution witnesses dovetails in material points
saw. What is striking about their testimonies is that
with his confession. He was seen walking toward the
while Jiezl said she saw accused-appellant going
bamboo grove, followed by the victim. Later, he was
toward the bamboo grove followed by the victim at
seen standing near the bamboo grove where the childs around 2 oclock in the afternoon on October 17, 1996,
body was found. Rule 133 of the Revised Rules on
Lorenzo said he had seen accused-appellant near the
Evidence provides:
bamboo grove at around that time. He described
accused-appellant as nervous and worried. There is no
3. Extrajudicial confession, not sufficient ground for
reason to doubt the claim of these witnesses. Lorenzo
conviction. An extrajudicial confession made by an
is a relative of accused-appellant.There is no reason
accused, shall not be sufficient ground for conviction, he would testify falsely against the latter. Jiezl, on the
unless corroborated by evidence ofcorpus delicti.
other hand, is also surnamed Domantay and could
also be related to accused-appellant and has not been
4. Evidence necessary in treason cases. No person
shown to have any reason to testify falsely against
charged with treason shall be convicted unless on the accused-appellant. At the time of the incident, she
testimony of two witnesses to the same overt act, or
was only 10 years old.
on confession in open court.
For the foregoing reasons, the Court is convinced of
Accused-appellant argues that it was improbable for a accused-appellants guilt with respect to the killing of
brutal killing to have been committed without the
the child. It is clear that the prosecution has proven
children who were playing about eight to ten meters
beyond reasonable doubt that accused-appellant is
from Amparo Domantays grove, where the crime took guilty of homicide. Art. 249 of the Revised Penal
place, having heard any commotion.[45] The contention Code provides:
has no merit. Accused-appellant could have covered
the young childs mouth to prevent her from making
Any person who, not falling within the provisions of
any sound.In fact, Dr. Bandonill noted a five by two
Article 246 [parricide] shall kill another without the
inch (5 x 2) contusion on the left side of the victims
attendance of any of the circumstances enumerated in
forehead, which he said could have been caused by a
the next preceding article [murder], shall be deemed
hard blunt instrument or by impact as her head hit the guilty of homicide and be punished by reclusion
ground.[46] The blow could have rendered her
unconscious, thus precluding her from shouting or
The killing was committed with the generic
aggravating circumstance of abuse of superior
Accused-appellant also contends that the testimony of strength. The record shows that the victim, Jennifer
Jiezl Domantay contradicts that of Lorenzo Domantay Domantay, was six years old at the time of the
because while Jiezl said she had seen accusedkilling. She was a child of small build, 46 in height.
appellant walking towards the bamboo grove,
It is clear then that she could not have put up much

of a defense against accused-appellants assault, the

latter being a fully grown man of 29 years. Indeed, the
physical evidence supports a finding of abuse of
superior strength: accused-appellant had a weapon,
while the victim was not shown to have had any; there
were 38 stab wounds; and all the knife wounds are
located at the back of Jennifers body.
But we think the lower court erred in finding that the
killing was committed with cruelty.[48] The trial court
appears to have been led to this conclusion by the
number of wounds inflicted on the victim. But the
number of wounds is not a test for determining
whether there was cruelty as an aggravating
circumstance.[49] The test . . . is whether the accused
deliberately and sadistically augmented the victims
suffering thus . . . there must be proof that the victim
was made to agonize before the [the accused]
rendered the blow which snuffed out [her] life.[50] In
this case, there is no such proof of cruelty. Dr.
Bandonill testified that any of the major wounds on
the victims back could have caused her death as they
penetrated her heart, lungs and liver, kidney and
Second. There is, however, no sufficient evidence to
hold accused-appellant guilty of raping Jennifer
Domantay. Art. 335 of the Revised Penal Code, as
amended, in part provides:
ART. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman
under any of the following circumstances.
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or is
As the victim here was six years old, only carnal
knowledge had to be proved to establish rape. Carnal
knowledge is defined as the act of a man having
sexual intercourse or sexual bodily connections with a
woman.[52] For this purpose, it is enough if there was
even the slightest contact of the male sex organ with
the labia of the victims genitalia.[53] However, there
must be proof, by direct or indirect evidence, of such

Dr. Ronald Bandonills report on the genital
examination he had performed on the deceased reads:

the probability of penetration of that area by a hard

rigid instrument.


Q Could it have been caused by a human organ?

GENITAL EXAMINATION; showed a complete
laceration of the right side of the hymen. The
surrounding genital area shows signs of inflamation.

A If the human male organ is erect, fully erect and

hard then it is possible, sir.



REMARKS: 1) Findings at the genital area indicate

the probability of penetration of that area by a hard,
rigid instrument.


Hymenal laceration is not necessary to prove rape;

neither does its presence prove its commission. As
held in People v. Ulili,[56] a medical certificate or the
testimony of the physician is presented not to prove
that the victim was raped but to show that the latter
had lost her virginity. Consequently, standing alone, a
physicians finding that the hymen of the alleged
victim was lacerated does not prove rape. It is only
when this is corroborated by other evidence proving
carnal knowledge that rape may be deemed to have
been established.[57]
This conclusion is based on the medically accepted
fact that a hymenal tear may be caused by objects
other than the male sex organ[58] or may arise from
other causes.[59] Dr. Bandonill himself admitted
this. He testified that the right side of the victims
hymen had been completely lacerated while the
surrounding genital area showed signs of
inflammation.[60] He opined that the laceration had
been inflicted within 24 hours of the victims death
and that the inflammation was due to a trauma in that
area.[61] When asked by the private prosecutor whether
the lacerations of the hymen could have been caused
by the insertion of a male organ he said this was
possible. But he also said when questioned by the
defense that the lacerations could have been caused
by something blunt other than the male organ. Thus,
he testified:[62]
Q Now, what might have caused the complete
laceration of the right side of the hymen, doctor?
A Well, sir, if you look at my report there is a remark
and it says there; findings at the genital area indicated

Q In your remarks; finding at the genital area

indicates the probability of penetration of that area by
a hard rigid instrument, this may have also been
caused by a dagger used in the killing of Jennifer
Domantay is that correct?
A Well, sir when I say hard rigid instrument it should
not be sharp pointed and sharp rigid, it should be a
hard bl[u]nt instrument.
Q Do you consider a bolo a bl[u]nt instrument, or a
A The dagger is a sharp rigid but it is not a bl[u]nt
instrument, sir.
Q This Genital Examination showed a complete
laceration of the right side of the hymen, this may
have been possibly caused by a dagger, is it not?

A Yes, your Honor.

Q And if there is a complete erection by a human
organ is this possible that the laceration can only be
on the right side of the hymen?
A Yes, your Honor, its possible.
Q How about if the penetration was done by a finger,
was it the same as the human organ?
A Well, it depends on the size of the finger that
penetrat[es] the organ, if the finger is small it could
the superficial laceration, and if the finger is large
then it is possible your honor.
Q How about two fingers?
A Possible, sir.
To be sure, this Court has sustained a number of
convictions for rape with homicide based on purely
circumstantial evidence. In those instances, however,
the prosecution was able to present other tell-tale
signs of rape such as the location and description of
the victims clothings, especially her undergarments,
the position of the body when found and the like.
In People v. Macalino,[64] for instance, the Court
affirmed a conviction for the rape of a two year-old
child on the basis of circumstantial evidence:[65]

The Court notes that the testimony or medical opinion

A No, sir. I wont say that this would have been caused of Dr. Gajardo that the fresh laceration had been
by a dagger, because a dagger would have made at its produced by sexual intercourse is corroborated by the
incision . . . not a laceration, sir.
testimony given by complainant Elizabeth that when
she rushed upstairs upon hearing her daughter
Q But this laceration may also have been caused by
suddenly cry out, she found appellant Macalino
other factors other the human male organ, is that
beside the child buttoning his own pants and that she
found some sticky fluid on the childs buttocks and
some blood on her private part. (Emphasis in the
A A hard bl[u]nt instrument, sir could show.
Q My question is other than the human male organ?
A Possible, sir.
Q You mentioned that the hymen was lacerated on the
right side?

In contrast, in the case at bar, there is no

circumstantial evidence from which to infer that
accused-appellant sexually abused the victim. The
only circumstance from which such inference might
be made is that accused-appellant was seen with the
victim walking toward the place where the girls body
was found. Maybe he raped the girl. Maybe he did
not. Maybe he simply inserted a blunt object into her
organ, thus causing the lacerations in the

hymen. Otherwise, there is no circumstance from

which it might reasonably be inferred that he abused
her, e.g., that he was zipping up his pants, that there
was spermatozoa in the girls vaginal canal.
Indeed, the very autopsy report of Dr. Bandonill
militates against the finding of rape. In describing the
stab wounds on the body of the victim, he testified:[66]
[A]fter examining the body I took note that there were
several stab wounds . . . these were all found at the
back area sir . . . extending from the back shoulder
down to the lower back area from the left to the right.
Considering the relative physical positions of the
accused and the victim in crimes of rape, the usual
location of the external bodily injuries of the victim is
on the face,[67] neck,[68] and anterior portion[69] of her
body. Although it is not unnatural to find contusions
on the posterior side, these are usually caused by the
downward pressure on the victims body during the
sexual assault.[70]It is unquestionably different when,
as in this case, all the stab wounds (except for a minor
cut in the lower left leg) had their entry points at the
back running from the upper left shoulder to the lower
right buttocks.
It is noteworthy that the deceased was fully clothed in
blue shorts and white shirt when her body was
brought to her parents house immediately after it was
found.[71] Furthermore, there is a huge bloodstain in
the back portion of her shorts.[72] This must be because
she was wearing this piece of clothing when the stab
wounds were inflicted or immediately thereafter, thus
allowing the blood to seep into her shorts to such an
extent. As accused-appellant would naturally have to
pull down the girls lower garments in order to
consummate the rape, then, he must have, regardless
of when the stab wounds were inflicted, pulled up the
victims shorts and undergarments after the alleged
rape, otherwise, the victims shorts would not have
been stained so extensively. Again, this is contrary to
ordinary human experience.
Even assuming that Jennifer had been raped, there is
no sufficient proof that it was accused-appellant who
had raped her. He did not confess to having raped the
From the foregoing, we cannot find that accusedappellant also committed rape. In the special complex

crime of rape with homicide, both the rape and the
homicide must be established beyond reasonable
Third. The trial court ordered accused-appellant to
pay the heirs of Jennifer Domantay the amount
of P30,000.00 as actual damages. However, the list of
expenses produced by the victims father, Jaime
Domantay, only totaled P28,430.00. Of this amount,
only P12,000.00 was supported by a receipt. Art. 2199
of the Civil Code provides that a party may recover
actual or compensatory damages only for such loss as
he has duly proved. Therefore, the award of actual
damages should be reduced to P12,000.00.


This is a petition for review on certiorari filed by
petitioner Union Motor Corporation of the April 10,
2003 Decision[1] of the Court of Appeals (CA) in CAG.R. SP No. 73602 which affirmed the decision of the
National Labor Relations Commission (NLRC)
holding that respondent Alejandro A. Etis was
illegally dismissed from his employment.

On October 23, 1993, the respondent was hired by the

petitioner as an automotive mechanic at the service
department in the latters Paco Branch. In 1994, he
was transferred to the Caloocan City Branch, where
his latest monthly salary was P6,330.00. During his
In addition, the heirs of Jennifer Domantay are
employment, he was awarded the Top Technician for
entitled to recover exemplary damages in view of the the month of May in 1995 and Technician of the Year
presence of the aggravating circumstance of abuse of
(1995). He also became a member of the
superior strength. Art. 2230 of the Civil Code
Exclusive P40,000.00 Club and received the Model
provides for the payment of exemplary damages when Employee Award in the same year.
the crime is committed with one or more aggravating
On September 22, 1997, the respondent made a phone
circumstance. An amount of P25,000.00 is deemed
call to Rosita dela Cruz, the company nurse, and
informed her that he had to take a sick leave as he had
In accordance with our rulings in People v.
a painful and unbearable toothache. The next day, he
Robles[75] and People v. Mengote,[76] the indemnity
again phoned Dela Cruz and told her that he could not
should be fixed at P50,000.00 and the moral damages report for work because he still had to consult a
at P50,000.00.[77]
doctor. Finding that the respondents ailment was due
to a tooth inflammation, the doctor referred him to a
WHEREFORE, the judgment of the trial court is
dentist for further management.[2] Dr. Rodolfo Pamor,
SET ASIDE and another one is rendered FINDING
a dentist, then scheduled the respondents tooth
accused-appellant guilty of homicide with the
extraction on September 27, 1997, hoping that, by that
aggravating circumstance of abuse of superior
time, the inflammation would have subsided. Upon
strength and sentencing him to a prison term of 12
instructions from the management, Mr. Dumagan, a
years of prision mayor, as minimum, to 20 years
company security guard, visited the respondent in his
of reclusion temporal, as maximum, and ORDERING house on September 24, 1997 and confirmed that the
him to pay the heirs of Jennifer Domantay the
latter was ill.
amounts of P50,000.00, as indemnity, P50,000.00, as
moral damages, P25,000.00, as exemplary damages,
On September 27, 1997, Dr. Pamor rescheduled the
and P12,000.00, as actual damages, and the costs.
respondents tooth extraction on October 4,
1997 because the inflammation had not yet subsided
and recommended that he rest. Thus, the respondent
was not able to report for work due to the painful and
[G.R. No. 159738. December 9, 2004]
unbearable toothache.
ETIS, respondents.

the consecutive absences of the respondent as

abandonment of office under Section 6.1.1, Article III
of the Company Rules.
On October 4, 1997, Dr. Pamor successfully extracted
the respondents tooth. As soon as he had recovered,
the respondent reported for work, but was denied
entry into the companys premises. He was also
informed that his employment had already been
terminated. The respondent sought help from the
union which, in turn, included his grievance in the
arbitration before the National Conciliation and
Mediation Board (NCMB). Pending the resolution
thereof, the respondent wrote to the petitioner asking
for the reconsideration of his dismissal,[4] which was
denied. Sometime thereafter, the unions complaints
were dismissed by the NCMB.
Left with no other recourse, the respondent filed, on
May 18, 1999, a complaint for illegal dismissal before
the arbitration branch of the NLRC against the
petitioner and/or Benito Cua, docketed as NLRCNCR Case No. 00-05-05691-99.[5]
The respondent alleged that he was dismissed from
his employment without just and legal basis. For its
part, the petitioner averred that his dismissal was
justified by his ten (10) unauthorized absences. It
posited that, under Article 282 of the Labor Code, an
employees gross and habitual neglect of his duties is a
just cause for termination. It further alleged that the
respondents repetitive and habitual acts of being
absent without notification constituted nothing less
than abandonment, which is a form of neglect of
On October 19, 2000, the Labor Arbiter rendered a
Decision dismissing the complaint. The Labor Arbiter
ruled that the respondents failure to report for work
for ten (10) days without an approved leave of
absence was equivalent to gross neglect of duty, and
that his claim that he had been absent due to severe
toothache leading to a tooth extraction was
unsubstantiated. The Labor Arbiter stressed that
unnotarized medical certificates were self-serving and
had no probative weight.

On October 2, 1997, the petitioner issued an Inter

Office Memorandum[3] through Angelo B. Nicolas, the
manager of its Human Resources Department,
Aggrieved, the respondent appealed the decision to
terminating the services of the respondent for having
the NLRC, docketed as NLRC NCR CA No. 027002incurred more than five (5) consecutive absences
01. He alleged therein that
without proper notification. The petitioner considered

On November 29, 2001, the NLRC issued a
Resolution reversing the decision of the Labor
Arbiter. The dispositive portion of the resolution
WHEREFORE, the assailed decision dated October
19, 2000 is SET ASIDE and
REVERSED. Accordingly, the respondent-appellee is
hereby ordered to immediately reinstate complainant
to his former position without loss of seniority rights
and other benefits and payment of his full backwages
from the time of his actual dismissal up to the time of
his reinstatement.
All other claims are dismissed for lack of merit.[8]
The NLRC upheld the claim of the respondent that his
successive absences due to severe toothache was
known to management. It ruled that the medical
certificates issued by the doctor and dentist who
attended to the respondent substantiated the latters
medical problem. It also declared that the lack of
notarization of the said certificates was not a valid
justification for their rejection as evidence. The
NLRC declared that the respondents absence for ten
(10) consecutive days could not be classified as gross
and habitual neglect of duty under Article 282 of the
Labor Code.
The NLRC resolved to deny the motion for
reconsideration of the petitioner, per its
Resolution[9] dated August 26, 2002.
The petitioner, thereafter, filed a petition for certiorari
under Rule 65 of the Rules of Court before the CA,
docketed as CA-G.R. SP No. 73602. It raised the
following issues:

Whether or not the public respondent gravely abused
it[s] discretion, amounting to lack or excess of
jurisdiction in reversing the decision of the labor
arbiter a quo and finding that private respondent
Alejandro A. Etis was illegally dismissed.
Whether or not public respondent gravely abused its
discretion in reinstating private respondent Alejandro
A. Etis to his former position without loss of seniority
rights and awarding him full backwages.[10]



As had been enunciated in numerous cases, the issues

that can be delved with in a petition for review under
Rule 45 are limited to questions of law. The Court is
not tasked to calibrate and assess the probative weight
of evidence adduced by the parties during trial all
The CA agreed with the ruling of the NLRC that
over again.[13] Well-established is the principle that
medical certificates need not be notarized in order to
findings of fact of quasi-judicial bodies, like the
be admitted in evidence and accorded full probative
NLRC, are accorded with respect, even finality, if
weight. It held that the medical certificates which bore supported by substantial evidence.[14] However, if, as
the names and licenses of the doctor and the dentist
in this case, the findings of the Labor Arbiter clash
who attended to the respondent adequately
with those of the NLRC and CA, this Court is
substantiated the latters illness, as well as the tooth
compelled to go over the records of the case, as well
extraction procedure performed on him by the dentist. as the submissions of the parties, and resolve the
The CA concluded that since the respondents
factual issues.
absences were substantiated, the petitioners
termination of his employment was without legal and The petitioner avers that the respondents absences
were unauthorized, and that the latter failed to notify
factual basis.
the petitioner in writing of such absences, the reasons
The CA similarly pointed out that even if the ten-day
therefor, and his (respondents) whereabouts as
absence of the respondent was unauthorized, the same prescribed by the company rules. The petitioner avers
was not equivalent to gross and habitual neglect of
that its security guard caught the respondent at home,
duty. The CA took into consideration the respondents fit to work. The petitioner further asserts that it was
unblemished service, from 1993 up to the time of his
justified in dismissing the respondent under Section
dismissal, and the latters proven dedication to his job 6.1.1, Article III of the Company Rules which reads:
evidenced by no less than the following awards: Top
An employee who commits unauthorized absences
Technician of the Year (1995), Member of the
continuously for five (5) consecutive working days
Exclusive P40,000.00 Club, and Model Employee of
without notice shall be considered as having
the Year (1995).
abandoned his job and shall be terminated for cause
The motion for reconsideration of the petitioner was
with applicable laws.
denied by the appellate court. Hence, the petition at
The petitioner contends that the respondents dismissal
was also justified under Article 282(b) of the Labor
The petitioner raises the following issues for the
Code, which provides that an employer may dismiss
Courts resolution:
an employee due to gross and habitual neglect of his
The contention of the petitioner has no merit.
The NLRC ruled that the respondent notified the
petitioner of his illness through the company nurse,
In its Decision[11] dated April 10, 2003, the CA
affirmed in toto the November 29, 2001 Resolution of
the NLRC.

and that the petitioner even dispatched a security

guard to the respondents house to ascertain the reason
of his absences, thus:
The termination by respondent-appellee of
complainants service despite knowledge of
complainants ailment, as shown by the telephone calls
made by the latter to the company nurse and the
actual confirmation made by respondents company
guard, who personally visited complainants residence,
clearly establishes the illegality of complainants
dismissal. The documentary testimonies of the nurse,
Miss Rosita dela Cruz, regarding complainants
telephone calls and the confirmation made by
respondents security guard, Mr. Dumagan, are
evidentiary matters which are relevant and material
and must be considered to the fullest by the Labor
Arbiter a quo. These circumstantial facts were
miserably set aside by the Labor Arbiter a
quo wherein he concluded that complainant
committed gross neglect of duty on alleged continued
absences is to our mind, not fully substantiated and
ought not be given credence by this
Commission. Time and again, this Tribunal impresses
that, in labor proceedings, in case of doubt, the doubt
must be reasonably in favor of labor. Maybe doubts
hang in this case but these doubts must be resolved in
favor of labor as mandated by law and our
jurisprudence. From the facts of this case, it is only
but reasonable to conclude that complainants service
was, indeed, terminated without legal or valid
cause. Where the law protects the right of employer to
validly exercise management prerogative such as to
terminate the services of an employee, such exercise
must be with legal cause as enumerated in Article 282
of the Labor Code or by authorized cause as defined
in Article 283 of the Labor Code.[15]
The CA affirmed the findings of facts of the NLRC.
We agree with the rulings of the NLRC and the
CA. We note that the company rules do not require
that the notice of an employees absence and the
reasons therefor be in writing and for such notice to
be given to any specific office and/or employee of the
petitioner. Hence, the notice may be verbal; it is
enough then that an officer or employee of the
petitioner, competent and responsible enough to
receive such notice for and in behalf of the petitioner,
was informed of such absence and the corresponding

The evidence on record shows that the respondent

informed the petitioner of his illness through the
company nurse. The security guard who was
dispatched by the petitioner to verify the information
received by the company nurse, confirmed the
respondents illness. We find and so hold that the
respondent complied with the requisite of giving
notice of his illness and the reason for his absences to
the petitioner.
We reject the petitioners contention that the medical
certificates adduced in evidence by the respondent to
prove (a) his illness, the nature and the duration of the
procedures performed by the dentist on him; and (b)
the period during which he was incapacitated to work
are inadmissible in evidence and barren of probative
weight simply because they were not notarized, and
the medical certificate dated September 23, 1997 was
not written on paper bearing the dentists
letterhead. Neither do we agree with the petitioners
argument that even assuming that the respondent was
ill and had been advised by his dentist to rest, the
same does not appear on the medical certificate
datedSeptember 23, 1997; hence, it behooved the
respondent to report for work on September 23,
1997. The ruling of the Court in Maligsa v. Atty.
Cabanting[16] is not applicable in this case.
It bears stressing that the petitioner made the same
arguments in the NLRC and the CA, and both
tribunals ruled as follows:
First, We concur with the ratiocination of respondent
NLRC when it ruled that a medical certificate need
not be notarized, to quote:
xxx. He was dismissed by reason of the fact that the
Medical Certificate submitted by the complainant
should not be given credence for not being notarized
and that no affidavit was submitted by the nurse to
prove that the complainant, indeed, called the
respondents office by telephone.
After full scrutiny and judicious evaluation of the
records of this case, We find the appeal to be
meritorious. Regrettably, the Labor Arbiter a
quo clearly failed to appreciate complainants pieces of
evidence. Nowhere in our jurisprudence requires that
all medical certificates be notarized to be accepted as
a valid evidence. In this case, there is [neither]
difficulty nor an obstacle to claim that the medical

certificates presented by complainant are genuine and
authentic. Indeed, the physician and the dentist who
examined the complainant, aside from their respective
letterheads, had written their respective license
numbers below their names and signatures. These
facts have not been impugned nor rebutted by
respondent-appellee throughout the proceedings of his
case.Common sense dictates that an ordinary worker
does not need to have these medical certificates to be
notarized for proper presentation to his company to
prove his ailment; hence, the Labor Arbiter a quo, in
cognizance with the liberality and the appreciation on
the rules on evidence, must not negate the acceptance
of these medical certificates as valid pieces of
We believe, as we ought to hold, that the medical
certificates can prove clearly and convincingly the
complainants allegation that he consulted a physician
because of tooth inflammation onSeptember 23,
1997 and a dentist who later advised him to rest and,
thus, clinically extended his tooth extraction due to
severe pain and inflammation. Admittingly, it was
only on October 4, 1997 that complainants tooth was
finally extracted.

The petitioner, likewise, failed to prove the factual

basis for its dismissal of the respondent on the ground
of gross and habitual negligence under Article 282(b)
of the Labor Code of the Philippines, or even under
Section 6.1.1, Rule III of the Company Rules.
Dismissal is the ultimate penalty that can be meted to
an employee. Thus, it must be based on just cause and
must be supported by clear and convincing evidence.
To effect a valid dismissal, the law requires not
only that there be just and valid cause for termination;
it, likewise, enjoins the employer to afford the
employee the opportunity to be heard and to defend
himself.[23] Article 282 of the Labor Code enumerates
the just causes for the termination of employment by
the employer:
An employer may terminate an employment for any
of the following causes:


petition is DENIED DUE COURSE. The Decision of
the Court of Appeals in CA-G.R. SP No. 73602
- versus -

(b) Gross and habitual neglect by the employee of his


We agree with the NLRC and the appellate court. In

light of the findings of facts of the NLRC and the CA,
the petitioner cannot find solace in the ruling of this
Court inMaligsa v. Atty. Cabantnig.[18]

To warrant removal from service, the negligence

should not merely be gross but also habitual. Gross
negligence implies a want or absence of or failure to
exercise slight care or diligence, or the entire absence
of care. It evinces a thoughtless disregard of
consequences without exerting any effort to avoid
them.[24] The petitioner has not sufficiently shown that
the respondent had willfully disobeyed the company
rules and regulation. The petitioner also failed to
prove that the respondent abandoned his job. The bare
fact that the respondent incurred excusable and
unavoidable absences does not amount to an
abandonment of his employment.
The petitioners claim of gross and habitual neglect of
duty pales in comparison to the respondents
unblemished record. The respondent did not incur any
intermittent absences. His only recorded absence was
the consecutive ten-day unauthorized absence, albeit
due to painful and unbearable toothache. The
petitioners claim that the respondent had manifested
poor work attitude was belied by its own recognition

assailed the Orders[2]issued by public respondent

Board of Medicine (BOM) in Administrative Case
No. 1882.
The facts, fairly summarized by the appellate court,
Due to her lumbar pains, private respondent Editha
Sioson went to Rizal Medical Center (RMC) for
check-up on February 4, 1995. Sometime in 1999, due
to the same problem, she was referred to Dr. Pedro
Lantin III of RMC who, accordingly, ordered several
diagnostic laboratory tests. The tests revealed that her
right kidney is normal. It was ascertained, however,
that her left kidney is non-functioning and nonvisualizing. Thus, she underwent kidney operation in
September, 1999.

BOARD OF MEDICINE and EDITHA SIOSON,On February 18, 2000, private respondents husband,

(a) Serious misconduct or willful disobedience by the

employee of the lawful orders of his employer or
representative in connection with his work;

From these disquisitions, it is clear that the absences

of private respondent are justifiable.[17]

While the records do not reveal that the respondent

filed the required leave of absence for the period
during which he suffered from a toothache, he
immediately reported for work upon recovery, armed
with medical certificates to attest to the cause of his
absence. The respondent could not have anticipated
the cause of his illness, thus, to require prior approval
would be unreasonable.[19] While it is true that the
petitioner had objected to the veracity of the medical
certificates because of lack of notarization, it has been
said that verification of documents is not necessary in
order that the said documents could be considered as
substantial evidence.[20] The medical certificates were
properly signed by the physicians; hence, they bear all
the earmarks of regularity in their issuance and are
entitled to full probative weight.[21]

of the respondents dedication to his job as evidenced

by the latters awards: Top Technician of the Year
(1995), Member of the Exclusive P40,000.00 Club,
and Model Employee of the Year (1995).

Romeo Sioson (as complainant), filed a complaint for

gross negligence and/or incompetence before the
[BOM] against the doctors who allegedly participated
in the fateful kidney operation, namely: Dr. Judd dela
Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio
Florendo and petitioner Rico Rommel Atienza.
It was alleged in the complaint that the gross
negligence and/or incompetence committed by the
said doctors, including petitioner, consists of the
removal of private respondents fully functional right
kidney, instead of the left non-functioning and nonvisualizing kidney.


The complaint was heard by the [BOM]. After

complainant Romeo Sioson presented his evidence,
private respondent Editha Sioson, also named as
complainant there, filed her formal offer of
documentary evidence. Attached to the formal offer of
documentary evidence are her Exhibits A to D, which
she offered for the purpose of proving that her
kidneys were both in their proper anatomical locations
at the time she was operated. She described her
exhibits, as follows:

Before us is a petition for review on certiorari under
Rule 45 of the Rules of Court, assailing the
Decision[1] dated September 22, 2006 of the Court of
Appeals (CA) in CA-G.R. SP No. 87755. The CA
dismissed the petition for certiorari filed by petitioner
Rico Rommel Atienza (Atienza), which, in turn,

EXHIBIT A the certified photocopy of the X-ray

Request form dated December 12, 1996, which is also
marked as Annex 2 as it was actually originally the
Annex to x x x Dr. Pedro Lantin, IIIs counter affidavit
filed with the City Prosecutor of Pasig City in
connection with the criminal complaint filed by
[Romeo Sioson] with the said office, on which are

handwritten entries which are the interpretation of the
results of the ultrasound examination. Incidentally,
this exhibit happens to be the same as or identical to
the certified photocopy of the document marked as
Annex 2 to the Counter-Affidavit dated March 15,
2000, filed by x x x Dr. Pedro Lantin, III, on May 4,
2000, with this Honorable Board in answer to this

Petitioner filed his comments/objections to private

respondents [Editha Siosons] formal offer of exhibits.
He alleged that said exhibits are inadmissible because
the same are mere photocopies, not properly
identified and authenticated, and intended to establish
matters which are hearsay. He added that the exhibits
are incompetent to prove the purpose for which they
are offered.

MAY 2004 AND 08 OCTOBER 2004 OF

Petitioner argues that the exhibits formally offered in

evidence by Editha: (1) violate the best evidence rule;
(2) have not been properly identified and
authenticated; (3) are completely hearsay; and (4) are
incompetent to prove their purpose. Thus, petitioner
contends that the exhibits are inadmissible evidence.
We disagree.

To begin with, it is well-settled that the rules of

evidence are not strictly applied in proceedings before
The formal offer of documentary exhibits of private
administrative bodies such as the BOM.[6] Although
respondent [Editha Sioson] was admitted by the
trial courts are enjoined to observe strict enforcement
[BOM] per its Order dated May 26, 2004. It reads:
of the rules of evidence,[7] in connection with evidence
which may appear to be of doubtful relevancy,
The Formal Offer of Documentary Evidence of
AND DECIDED A QUESTION OF SUBSTANCE IN incompetency, or admissibility, we have held that:
[Romeo Sioson], the Comments/Objections of [herein A WAY NOT IN ACCORDANCE WITH LAW AND
petitioner] Atienza, [therein respondents] De la Vega
[I]t is the safest policy to be liberal, not rejecting them
and Lantin, and the Manifestation of [therein]
on doubtful or technical grounds, but admitting them
respondent Florendo are hereby ADMITTED by the
unless plainly irrelevant, immaterial or incompetent,
[BOM] for whatever purpose they may serve in the
for the reason that their rejection places them beyond
resolution of this case.
the consideration of the court, if they are thereafter
found relevant or competent; on the other hand, their
Let the hearing be set on July 19, 2004 all at 1:30 p.m. PROPERTY RIGHT OR ONES LIVELIHOOD.[4]
admission, if they turn out later to be irrelevant or
for the reception of the evidence of the respondents.
incompetent, can easily be remedied by completely
We find no reason to depart from the ruling of the CA. discarding them or ignoring them.[8]
Petitioner is correct when he asserts that a petition
From the foregoing, we emphasize the distinction
EXHIBIT C the certified photocopy of the X-ray
Petitioner moved for reconsideration of the
for certiorari is the proper remedy to assail the Orders between the admissibility of evidence and the
request form dated March 16, 1996, which is also
probative weight to be accorded the same pieces of
marked as Annex 4, on which are handwritten entries abovementioned Order basically on the same reasons of the BOM, admitting in evidence the exhibits of
stated in his comment/objections to the formal offer of Editha. As the assailed Orders were interlocutory,
evidence. PNOCShipping and Transport Corporation
which are the interpretation of the results of the
these cannot be the subject of an appeal separate from v. Court of Appeals[9] teaches:
the judgment that completely or finally disposes of
The [BOM] denied the motion for reconsideration of
the case.[5] At that stage, where there is no appeal, or
Admissibility of evidence refers to the question of
EXHIBIT D the certified photocopy of the X-ray
any plain, speedy, and adequate remedy in the
whether or not the circumstance (or evidence) is to be
request form dated May 20, 1999, which is also
considered at all. On the other hand, the probative
marked as Annex 16, on which are handwritten entries concluded that it should first admit the evidence being ordinary course of law, the only and remaining
offered so that it can determine its probative value
remedy left to petitioner is a petition
value of evidence refers to the question of whether or
which are the interpretation of the results of the
when it decides the case. According to the Board, it
for certiorari under Rule 65 of the Rules of Court on
not it proves an issue.
examination. Incidentally, this exhibit appears to be
can determine whether the evidence is relevant or not the ground of grave abuse of discretion amounting to
the draft of the typewritten final report of the same
if it will take a look at it through the process of
Second, petitioners insistence that the admission of
lack or excess of jurisdiction.
examination which is the document appended as
Edithas exhibits violated his substantive rights leading
Annexes 4 and 1 respectively to the counter-affidavits admission. x x x.
However, the writ of certiorari will not issue absent a to the loss of his medical license is misplaced.
filed by x x x Dr. Judd dela Vega and Dr. Pedro
Disagreeing with the BOM, and as previously
showing that the BOM has acted without or in excess Petitioner mistakenly relies on Section 20, Article I of
Lantin, III in answer to the complaint. In the case of
the Professional Regulation Commission Rules of
Dr. dela Vega however, the document which is marked adverted to, Atienza filed a petition for certiorari with of jurisdiction or with grave abuse of discretion.
the CA, assailing the BOMs Orders which admitted
Embedded in the CAs finding that the BOM did not
Procedure, which reads:
as Annex 4 is not a certified photocopy, while in the
Editha Siosons (Edithas) Formal Offer of
exceed its jurisdiction or act in grave abuse of
case of Dr. Lantin, the document marked as Annex 1
Documentary Evidence. The CA dismissed the
Section 20. Administrative investigation shall be
discretion is the issue of whether the exhibits of
is a certified photocopy. Both documents are of the
petition for certiorari for lack of merit.
Editha contained in her Formal Offer of Documentary conducted in accordance with these Rules. The Rules
same date and typewritten contents are the same as
of Court shall only apply in these proceedings by
Evidence are inadmissible.
that which are written on Exhibit D.
Hence, this recourse positing the following issues:
analogy or on a suppletory character and whenever
practicable and convenient. Technical errors in the
EXHIBIT B the certified photo copy of the X-ray
request form dated January 30, 1997, which is also
marked as Annex 3 as it was actually likewise
originally an Annex to x x x Dr. Pedro Lantin, IIIs
counter-affidavit filed with the Office of the City
Prosecutor of Pasig City in connection with the
criminal complaint filed by the herein complainant
with the said office, on which are handwritten entries
which are the interpretation of the results of the
examination. Incidentally, this exhibit happens to be
also the same as or identical to the certified photo
copy of the document marked as Annex 3 which is
likewise dated January 30, 1997, which is appended
as such Annex 3 to the counter-affidavit dated March
15, 2000, filed by x x x Dr. Pedro Lantin, III on May
4, 2000, with this Honorable Board in answer to this

Dispositions of the Board of Medicine

admission of evidence which do not prejudice the
substantive rights of either party shall not vitiate the

make-up and composition of living things such as

human beings. In this case, we may take judicial
notice that Edithas kidneys before, and at the time of,
her operation, as with most human beings, were in
their proper anatomical locations.

As pointed out by the appellate court, the admission

of the exhibits did not prejudice the substantive rights
of petitioner because, at any rate, the fact sought to be Third, contrary to the assertion of petitioner, the best
proved thereby, that the two kidneys of Editha were in evidence rule is inapplicable. Section 3 of Rule 130
their proper anatomical locations at the time she was
operated on, is presumed under Section 3, Rule 131 of
1. Best Evidence Rule
the Rules of Court:

established through a belated ultrasound or x-ray of

her abdominal area.
In fact, the introduction of secondary evidence, such
as copies of the exhibits, is allowed.[15] Witness Dr.
Nancy Aquino testified that the Records Office of
RMC no longer had the originals of the exhibits
because [it] transferred from the previous building, x
x x to the new building.[16] Ultimately, since the
originals cannot be produced, the BOM properly
admitted Edithas formal offer of evidence and,
thereafter, the BOM shall determine the probative
value thereof when it decides the case.


Sec. 3. Original document must be produced;

exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document itself,
except in the following cases:

(y) That things have happened according to the

ordinary course of nature and the ordinary habits of

(a) When the original has been lost or destroyed, or

cannot be produced in court, without bad faith on the
part of the offeror;


The exhibits are certified photocopies of X-ray

Request Forms dated December 12, 1996, January 30,
1997, March 16, 1996, and May 20, 1999, filed in
connection with Edithas medical case. The documents
contain handwritten entries interpreting the results of
the examination. These exhibits were actually
attached as annexes to Dr. Pedro Lantin IIIs counter
affidavit filed with the Office of the City Prosecutor
of Pasig City, which was investigating the criminal
complaint for negligence filed by Editha against the
doctors of Rizal Medical Center (RMC) who handled
her surgical procedure. To lay the predicate for her
case, Editha offered the exhibits in evidence to prove
that her kidneys were both in their proper anatomical
locations at the time of her operation.

(b) When the original is in the custody or under the

control of the party against whom the evidence is
offered, and the latter fails to produce it after
reasonable notice;


TARAN, petitioners, vs. SANDIGANBAYAN and

Sec. 3. Disputable presumptions. The following

presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:

WHEREFORE, the petition is DENIED. The

Decision of the Court of Appeals in CA-G.R. SP No.
87755 is AFFIRMED. Costs against petitioner.

members of the military, before the Sandiganbayan

for the killing of Senator Aquino who was fatally shot
as he was coming down from the aircraft of China
Airlines at the Manila International Airport.
Petitioners were also indicted for the killing of
Rolando Galman who was also gunned down at the
airport tarmac.
On December 2, 1985, the Sandiganbayan rendered a
Decision in Criminal Cases Nos. 10010-10011
acquitting all the accused, which include the
petitioners. However, the proceedings before the
Sandiganbayan were later found by this Court to be a
sham trial. The Court thus nullified said proceedings,
as well as the judgment of acquittal, and ordered a retrial of the cases.[2]
A re-trial ensued before the Sandiganbayan.

The fact sought to be established by the admission of

Edithas exhibits, that her kidneys were both in their
proper anatomical locations at the time of her
operation, need not be proved as it is covered by
mandatory judicial notice.[11]
Unquestionably, the rules of evidence are merely the
means for ascertaining the truth respecting a matter of
fact.[12] Thus, they likewise provide for some facts
which are established and need not be proved, such as
those covered by judicial notice, both mandatory and
discretionary.[13] Laws of nature involving the physical
sciences, specifically biology,[14] include the structural

(c) When the original consists of numerous accounts

or other documents which cannot be examined in
court without great loss of time and the fact sought to
be established from them is only the general result of
the whole; and
(d) When the original is a public record in the custody
of a public officer or is recorded in a public office.
The subject of inquiry in this case is whether
respondent doctors before the BOM are liable for
gross negligence in removing the right functioning
kidney of Editha instead of the left non-functioning
kidney, not the proper anatomical locations of Edithas
kidneys. As previously discussed, the proper
anatomical locations of Edithas kidneys at the time of
her operation at the RMC may be established not only
through the exhibits offered in evidence.
Finally, these exhibits do not constitute hearsay
evidence of the anatomical locations of Edithas
kidneys. To further drive home the point, the
anatomical positions, whether left or right, of Edithas
kidneys, and the removal of one or both, may still be

[G.R. Nos. 96027-28. March 08, 2005]


In its decision dated September 28, 1990, the

Sandiganbayan, while acquitting the other accused,
found the petitioners guilty as principals of the crime
of murder in both Criminal Cases Nos. 10010 and
10011. It sentenced them to reclusion perpetua in
each case.[3] The judgment became final after this
Court denied petitioners petition for review of the
Sandiganbayan decision for failure to show reversible
error in the questioned decision,[4] as well as their
subsequent motion for reconsideration.[5]
In August 2004, petitioners sought legal assistance
from the Chief Public Attorney who, in turn,
requested the Independent Forensic Group of the
University of the Philippines to make a thorough
review of the forensic evidence in the double murder
case. The petitioners, assisted by the Public Attorneys
Office, now want to present the findings of the
forensic group to this Court and ask the Court to
allow the re-opening of the cases and the holding of a
third trial to determine the circumstances surrounding
the death of Senator Benigno Aquino, Jr. and Rolando

Before us is a Motion To Re-Open Case With Leave

Of Court filed by petitioners who were convicted and
sentenced to reclusion perpetua by the Sandiganbayan
in Criminal Cases Nos. 10010 and 10011 for the
Petitioners invoke the following grounds for the redouble murder of Senator Benigno Aquino, Jr. and
opening of the case:
Rolando Galman on August 21, 1983.[1]
Petitioners were members of the military who acted as
Senator Aquinos security detail upon his arrival in
Existence of newly discovered pieces of evidence that
Manila from his three-year sojourn in the United
were not available during the second trial of the
States. They were charged, together with several other

above-entitled cases which could have altered the
judgment of the Sandiganbayan, specifically:
A) Independent forensic evidence uncovering the
false forensic claims that led to the unjust conviction
of the petitioners-movants.
B) A key defense eyewitness to the actual killing of
Senator Benigno Aquino, Jr.
There was a grave violation of due process by reason
A) Insufficient legal assistance of counsel;
B) Deprivation of right to counsel of choice;
C) Testimonies of defense witnesses were under
D) Willful suppression of evidence;
E) Use of false forensic evidence that led to the unjust
conviction of the petitioners-movants.
There was serious misapprehension of facts on the
part of the Sandiganbayan based on false forensic
evidence, which entitles petitioners-movants to a retrial.[6]
Petitioners seek to present as new evidence the
findings of the forensic group composed of Prof.
Jerome B. Bailen, a forensic anthropologist from the
University of the Philippines, Atty. Erwin P. Erfe,
M.D., a medico-legal practitioner, Benito E. Molino,
M.D., a forensic consultant and Human Rights and
Peace Advocate, and Anastacio N. Rosete, Jr.,
D.M.D., a forensic dentistry consultant. Their report
essentially concludes that it was not possible, based
on the forensic study of the evidence in the double
murder case, that C1C Rogelio Moreno fired at
Senator Aquino as they descended the service
stairway from the aircraft. They posit that Senator
Aquino was shot while he was walking on the airport
tarmac toward the waiting AVSECOM van which was
supposed to transport him from the airport to Fort
Bonifacio. This is contrary to the finding of the

Sandiganbayan in the second trial that it was C1C

Moreno, the security escort positioned behind Senator
Aquino, who shot the latter. The report also suggests
that the physical evidence in these cases may have
been misinterpreted and manipulated to mislead the
court. Thus, petitioners assert that the September 28,
1990 decision of the Sandiganbayan should be voided
as it was based on false forensic evidence. Petitioners
submit that the review by the forensic group of the
physical evidence in the double murder case
constitutes newly discovered evidence which would
entitle them to a new trial under Rule 121 of the 2000
Rules of Criminal Procedure. In addition to the report
of the forensic group, petitioners seek to present the
testimony of an alleged eyewitness, the driver of the
waiting AVSECOM van, SPO4 Ruben M.
Cantimbuhan. In his affidavit submitted to this Court,
SPO4 Cantimbuhan states that he saw a man in blue
uniform similar to that of the Philippine Airlines
maintenance crew, suddenly fire at Senator Aquino as
the latter was about to board the van. The man in blue
was later identified as Rolando Galman.
Petitioners pray that the Court issue a resolution:
1. [a]nnulling and setting aside this Honorable Courts
Resolutions dated July 23, 1991 and September 10,
2. [a]nnulling and setting aside the Decision of the
Sandiganbayan (3rd Division) dated September 28,
1990 in People vs. Custodio, et al., Case No. 1001010011[;]
3. [o]rdering the re-opening of this case; [and]
4. [o]rdering the Sandiganbayan to allow the
reception of additional defense evidence/re-trial in the
above entitled cases.[7]
The issue now is whether petitioners are entitled to
a third trial under Rule 121 of the 2000 Rules of
Criminal Procedure.
The pertinent sections of Rule 121 of the 2000 Rules
of Criminal Procedure provide:
Section 1. New Trial or reconsideration. At any time
before a judgment of conviction becomes final, the
court may, on motion of the accused or at its own

instance but with the consent of the accused, grant a

new trial or reconsideration.
Sec. 2. Grounds for a new trial. The court shall grant
a new trial on any of the following grounds:

exists newly discovered evidence. In the proceedings

for new trial, the errors of law or irregularities are
expunged from the record or new evidence is
introduced. Thereafter, the original judgment is
vacated and a new one is rendered.[9]

(a) That errors of law or irregularities prejudicial to

the substantial rights of the accused have been
committed during the trial;

Under the Rules, a person convicted of a crime may

avail of the remedy of new trial before the judgment
of conviction becomes final. Petitioners admit that the
decision of the Sandiganbayan in Criminal Cases Nos.
(b) That new and material evidence has been
10010 and 10011 became final and executory upon
discovered which the accused could not with
denial of their petition for review filed before this
reasonable diligence have discovered and produced Court and their motion for reconsideration. Entry of
at the trial and which if introduced and admitted
judgment has in fact been made on September 30,
would probably change the judgment.
1991.[10] Nonetheless, they maintain that equitable
considerations exist in this case to justify the
relaxation of the Rules and re-open the case to accord
petitioners the opportunity to present evidence that
Sec. 6. Effects of granting a new trial or
will exonerate them from the charges against them.
reconsideration. The effects of granting a new trial or We do not find merit in their submission.
reconsideration are the following:
Petitioners anchor their motion on the ground of
newly discovered evidence. Courts are
generally reluctant in granting motions for new trial
on the ground of newly discovered evidence for it
is presumed that the moving party has had ample
opportunity to prepare his case carefully and to secure
all the necessary evidence before the trial. Such
motions are treated with great caution due to the
(b) When a new trial is granted on the ground of
danger of perjury and the manifest injustice of
newly discovered evidence, the evidence already
allowing a party to allege that which may be the
adduced shall stand and the newly-discovered and
consequence of his own neglect to defeat an adverse
such other evidence as the court may, in the interest of judgment. Hence, the moving party is often required
justice, allow to be introduced shall be taken and
to rebut a presumption that the judgment is correct
considered together with the evidence already in the
and that there has been a lack of due diligence, and to
establish other facts essential to warrant the granting
of a new trial on the ground of newly discovered
(c) In all cases, when the court grants new trial or
evidence.[11] This Court has repeatedly held that
reconsideration, the original judgment shall be set
before a new trial may be granted on the ground of
aside or vacated and a new judgment rendered
newly discovered evidence, it must be shown (1) that
accordingly. (emphasis supplied)
the evidence was discovered after trial; (2) that such
evidence could not have been discovered and
In line with the objective of the Rules of Court to set
produced at the trial even with the exercise of
guidelines in the dispensation of justice, but without
reasonable diligence; (3) that it is material, not merely
shackling the hands that dispense it, the remedy of
cumulative, corroborative, or impeaching; and (4) the
new trial has been described as a new invention to
evidence is of such weight that it would probably
temper the severity of a judgment or prevent the
change the judgment if admitted. If the alleged newly
failure of justice. Thus, the Rules allow the courts to discovered evidence could have been very well
grant a new trial when there are errors of law or
presented during the trial with the exercise of
irregularities prejudicial to the substantial rights of the reasonable diligence, the same cannot be considered
accused committed during the trial, or when there
newly discovered.[12]
(a) When a new trial is granted on the ground of
errors of law or irregularities committed during the
trial, all the proceedings and evidence affected
thereby shall be set aside and taken anew. The court
may, in the interest of justice, allow the introduction
of additional evidence.

These standards, also known as the Berry rule, trace
their origin to the 1851 case of Berry vs. State of
Georgia[13] where the Supreme Court of Georgia held:

The Rules do not give an exact definition of due

diligence, and whether the movant has exercised due
diligence depends upon the particular circumstances
of each case.[16]Nonetheless, it has been observed that
Applications for new trial on account of newly
the phrase is often equated with reasonable
discovered evidence, are not favored by the Courts. x promptness to avoid prejudice to the defendant. In
x x Upon the following points there seems to be a
other words, the concept of due diligence has both a
pretty general concurrence of authority, viz; that it is
time component and a good faith component. The
incumbent on a party who asks for a new trial, on the movant for a new trial must not only act in a timely
ground of newly discovered evidence, to satisfy the
fashion in gathering evidence in support of the
Court, 1st. That the evidence has come to his
motion; he must act reasonably and in good faith as
knowledge since the trial. 2d. That it was not owing to well. Due diligence contemplates that the defendant
the want of due diligence that it did not come sooner. acts reasonably and in good faith to obtain the
3d. That it is so material that it would produce a
evidence, in light of the totality of the circumstances
different verdict, if the new trial were granted. 4th.
and the facts known to him.[17]
That it is not cumulative only viz; speaking to facts, in
relation to which there was evidence on the trial. 5th.
Applying the foregoing tests, we find that petitioners
That the affidavit of the witness himself should be
purported evidence does not qualify as newly
produced, or its absence accounted for. And 6th, a new discovered evidence that would justify the re-opening
trial will not be granted, if the only object of the
of the case and the holding of a third trial.
testimony is to impeach the character or credit of a
The report of the forensic group may not be
witness. (citations omitted)
considered as newly discovered evidence as
These guidelines have since been followed by our
petitioners failed to show that it was impossible for
courts in determining the propriety of motions for
them to secure an independent forensic study of the
new trial based on newly discovered evidence.
physical evidence during the trial of the double
murder case. It appears from their report that the
It should be emphasized that the applicant for new
forensic group used the same physical and
trial has the burden of showing that the new evidence testimonial evidence proferred during the trial, but
he seeks to present has complied with the requisites to made their own analysis and interpretation of said
justify the holding of a new trial.
evidence. They cited the materials and methods that
they used for their study, viz:
The threshold question in resolving a motion for new
trial based on newly discovered evidence is whether
the proferred evidence is in fact a newly discovered
evidence which could not have been discovered by
due diligence. The question of whether evidence is
a. Court records of the case, especially photographs
newly discovered has two aspects: a temporal
of: a) the stairway where the late Sen. Aquino and his
one, i.e., when was the evidence discovered, and
escorts descended; b) the part of the tarmac where the
a predictive one, i.e., when should or could it have
been discovered. It is to the latter that the requirement lifeless bodies of the late Sen. Aquino and Galman
of due diligence has relevance.[14] We have held that in fell; and c) the autopsy conducted by the NBI
Medico-legal team headed by Dr. Mu[]oz; and the
order that a particular piece of evidence may be
properly regarded as newly discovered to justify new autopsy report of the late Sen. Benigno Aquino[,] Jr.
signed by Dr. Mu[]oz and Dr. Solis;
trial, what is essential is not so much the time when
the evidence offered first sprang into existence nor the
b. The gun and live ammunitions collected at the
time when it first came to the knowledge of the party
now submitting it; what is essential is that the offering crime scene;
party had exercised reasonable diligence in seeking
to locate such evidence before or during trial but had
nonetheless failed to secure it.[15]

c. A reference human skull photos and X-rays of the

same to demonstrate wound location and bullet
d. The reports of interviews and statements by the
convicted military escorts, and other witnesses;
e. Re-enactment of the killing of Aquino based on the
military escorts[] version, by the military escorts
themselves in the Bilibid Prison and by volunteers at
the NAIA Tarmac;
f. Various books and articles on forensic and the
medico-legal field[;]
g. Results of Forensic experiments conducted in
relation to the case.
a. Review of the forensic exhibits presented in the
b. Review of TSNs relevant to the forensic review;
c. Study of and research on the guns, slugs and
ammunitions allegedly involved in the crime;

These materials were available to the parties during

the trial and there was nothing that prevented the
petitioners from using them at the time to support
their theory that it was not the military, but Rolando
Galman, who killed Senator Aquino. Petitioners, in
their present motion, failed to present any new
forensic evidence that could not have been obtained
by the defense at the time of the trial even with the
exercise of due diligence. If they really wanted to
seek and offer the opinion of other forensic experts at
the time regarding the physical evidence gathered at
the scene of the crime, there was ample opportunity
for them to do so before the case was finally
submitted and decided.[19]
A reading of the Sandiganbayan decision dated
September 28, 1990 shows a thorough study by the
court of the forensic evidence presented during the
trial, viz:
As to the physical

Great significance has to be accorded the trajectory of

the single bullet that penetrated the head and caused
d. Interviews/re-enactment of the crime based on the
the death of Sen. Benigno Aquino, Jr. Basic to the
militarys accounts, both in the Bilibid Prison where
question as to trajectory ought to be the findings
the convicts are confined and the MIA (now NAIA)
during the autopsy. The prosector in the autopsy, Dr.
stairway and tarmac;
Bienvenido Muoz, NBI Medico-Legal Officer,
reported in his Autopsy Report No. N-83-22-36, that
e. Conduct of ocular inspection and measurements on the trajectory of the gunshot, the wound of entrance
the actual crime scene (stairway and tarmac) at the old having been located at the mastoid region, left, below
Manila International Airport (now NAIA);
the external auditory meatus, and the exit wound
having been at the anterior portion of the mandible,
f. Retracing the slugs trajectory based on the autopsy
was forward, downward and medially. (Autopsy
reports and experts testimonies using an actual human Report No. N-83-22-36, Exhibit NNNN-2-t-2)
g. X-rays of the skull with the retraced trajectory
based on the autopsy report and experts testimonies;
h. Evaluation of the presented facts and opinions of
local experts in relation to accepted forensic findings
in international publications on forensic science,
particularly on guns and [gunshot] wound injuries;
i. Forensic experiments and simulations of events in
relation to this case.[18]

A controversy as to this trajectory came about when,

upon being cross-examined by counsel for the
defense, Dr. Bienvenido Muoz made a significant
turn-about by stating that the correct trajectory of the
fatal bullet was upward, downward, and medially. The
present position of Dr. Muoz is premised upon the
alleged fact that he found the petrous bone fractured,
obviously hit by the fatal bullet. He concluded, in
view of this finding, that the fatal bullet must have
gone upward from the wound of entrance. Since the
fatal bullet exited at the mandible, it is his belief that

the petrous bone deflected the trajectory of the bullet
and, thus, the bullet proceeded downwards from the
petrous bone to the mandible.

To be sure, had the main bullet hit the petrous bone,

this spongy mash of cartilage would have been
decimated or obliterated. The fact that the main bullet
was of such force, power and speed that it was able to
This opinion of Dr. Bienvenido Muoz in this regard
bore a hole into the mandible and crack it, is an
notwithstanding, We hold that the trajectory of the
indication that it could not have been stopped or
fatal bullet which killed Sen. Benigno Aquino, Jr.
deflected by a mere petrous bone. By its power and
was, indeed, forward, downward and medially. For
force, it must have been propelled by a powerful gun.
the reason that the wound of entrance was at a higher It would have been impossible for the main bullet to
elevation than the wound of exit, there can be no other have been deflected form an upward course by a mere
conclusion but that the trajectory was downward. The spongy protuberance. Granting that it was so
bullet when traveling at a fast rate of speed takes a
deflected, however, it could not have maintained the
straight path from the wound of entrance to the wound same power and force as when it entered the skull at
of exit. It is unthinkable that the bullet, while
the mastoid region so as to crack the mandible and
projected upwards, would, instead of exiting to the
make its exit there.
roof of the head, go down to the mandible because it
was allegedly deflected by a petrous bone which
But what caused the fracture of the petrous bone? Was
though hard is in fact a mere spongy protuberance,
there a cause of the fracture, other than that the bullet
akin to a cartilage.
had hit it? Dr. Pedro Solis, maintaining the conclusion
that the trajectory of the bullet was downward, gave
Clear is proof of the downward trajectory of the fatal
the following alternative explanations for the fracture
bullet; First, as Dr. Pedro Solis and Dr. Ceferino
of the petrous bone:
Cunanan, the immediate superiors of Dr. Bienvenido
Muoz, manifested before the Court, that, since the
First, the petrous bone could have been hit by a
wound of entrance appeared ovaloid and there is what splinter of the main bullet, particularly, that which
is known as a contusion collar which was widest at
was found at the temporal region; and,
the superior portion, indicating an acute angle of
Second, the fracture must have been caused by the
approach, a downward trajectory of the bullet is
indicated. This phenomenon indicates that the muzzle kinetic force applied to the point of entrance at the
mastoid region which had the tendency of being
of the fatal gun was at a level higher than that of the
radiated towards the petrous bone.
point of entry of the fatal bullet.
There was no showing as to whether a probe could
have been made from the wound of entrance to the
petrous bone. Out of curiosity, Dr. Juanito Billote
tried to insert a probe from the wound of exit into the
petrous bone. He was unsuccessful notwithstanding
four or five attempts. If at all, this disproves the
theory of Dr. Muoz that the trajectory was upward,
downward and medially. On the other hand, Dr.
Juanito Billote and photographer Alexander Loinaz
witnessed the fact that Dr. Muoz[s] understudy,
Alejandrino Javier, had successfully made a probe
from the wound of entrance directly towards the
wound of exit. Alejandrino Javier shouted with
excitement upon his success and Alexander Loinaz
promptly photographed this event with Alejandrino
Javier holding the protruding end of the probe at the
mandible. (Exhibit XXXXX-39-A)

Thus, the fracture in the occipital bone, of the

temporal bone, and of the parietal bone, Dr. Pedro
Solis pointed out, had been caused by the aforesaid
kinetic force. When a force is applied to the mastoid
region of the head, Dr. Pedro Solis emphasized, a
radiation of forces is distributed all over the cranial
back, including, although not limited to, the parietal
bone. The skull, Dr. Solis explains, is a box-like
structure. The moment you apply pressure on the
portion, a distortion, tension or some other
mechanical defect is caused. This radiation of forces
produces what is known as the spider web linear
fracture which goes to different parts of the body. The
so-called fracturing of the petrous portion of the left
temporal bone is one of the consequences of the
kinetic force forcefully applied to the mastoid region.

The fact that there was found a fracture of the petrous

bone is not necessarily indicative of the theory that
the main bullet passed through the petrous bone.
Doubt was expressed by Dr. Pedro Solis as to whether
the metal fragments alleged by Dr. Bienvenido Muoz
to have been found by him inside the skull or at the
wound of exit were really parts of the main bullet
which killed the Senator. When Dr. Pedro Solis
examined these fragments, he found that two (2) of
the fragments were larger in size, and were of such
shapes, that they could not have gone out of the
wound of exit considering the size and shape of the
exit wound.

Aquino occurred while the Senator was still on the

bridge stairs, a conclusion derived from the fact that
the fatal shot was fired ten (10) seconds after Senator
Aquino crossed the service door and was led down the
bridge stairs.
It was the expert finding of Dr. Matsumi Suzuki that,
as was gauged from the sounds of the footsteps of
Senator Aquino, as the Senator went down the bridge
stairs, the shooting of the Senator occurred while the
Senator had stepped on the 11th step from the top.

Finding of a downward

At the ocular inspection conducted by this Court, with

the prosecution and the defense in attendance, it
should be noted that the following facts were
established as regards the bridge stairs:

trajectory of the


fatal bullet fatal

The length of one block covering the tarmac 196;

to the credibility

The width of one block covering the tarmac 10;

of defense witnesses.

The distance from the base of the staircase leading to

the emergency tube to the Ninoy marker at the tarmac

The finding that the fatal bullet which killed Sen.

Benigno Aquino, Jr. was directed downwards sustains
the allegation of prosecution eyewitnesses to the
effect that Sen. Benigno Aquino, Jr. was shot by a
military soldier at the bridge stairs while he was being
brought down from the plane. Rebecca Quijano saw
that the senator was shot by the military man who was
directly behind the Senator while the Senator and he
were descending the stairs. Rebecca Quijanos
testimony in this regard is echoed by Jessie
Barcelona, Ramon Balang, Olivia Antimano, and
Mario Laher, whose testimonies this Court finds
likewise as credible.
The downward trajectory of the bullet having been
established, it stands to reason that the gun used in
shooting the Senator was fired from an elevation
higher than that of the wound of entrance at the back
of the head of the Senator. This is consistent with the
testimony of prosecution witnesses to the effect that
the actual killer of the Senator shot as he stood at the
upper step of the stairs, the second or third behind
Senator Aquino, while Senator Aquino and the
military soldiers bringing him were at the bridge
stairs. This is likewise consistent with the statement of
Sandra Jean Burton that the shooting of Senator

There are 20 steps in the staircase including the

The distance from the first rung of the stairway up to
the 20th rung which is the landing of stairs 208;
Distance from the first rung of the stairway up to the
20th rung until the edge of the exit door 2311;
Distance from the 4th rung up to the exit door 21;
Distance from the 5th rung up to the exit door 1911;
Length of one rung including railpost 34;
Space between two rungs of stairway 9;
Width of each rung 11-1/2;
Length of each rung (end to end) 29:
Height of railpost from edge of rung to railing 25.
(underlining supplied)[20]

The Sandiganbayan again exhaustively analyzed and
discussed the forensic evidence in its resolution dated
November 15, 1990 denying the motion for
reconsideration filed by the convicted accused. The
court held:
The Autopsy Report No. N-83-2236, Exhibit NNNN2-t-2 indicated a downward trajectory of the fatal
bullet when it stated that the fatal bullet was forward,
downward, and medially . . .

These physical facts, notwithstanding the arguments
and protestations of counsel for the defense as now
and heretofore avowed, compel the Court to maintain
the holding: (1) that the trajectory of the fatal bullet
which hit and killed Senator Benigno Aquino, Jr. was
forward, downward and medially; (2) that the Senator
was shot by a person who stood at a higher elevation
than he; and (3) that the Senator was shot and killed
by CIC Rogelio Moreno on the bridge stairs and not
on the tarmac, in conspiracy with the rest of the
accused convicted herein.[21]

discredited goes into the question of credibility of

witnesses, a matter which under the records of this
petition is best left to the judgment of the
The report of the forensic group essentially
reiterates the theory presented by the defense
during the trial of the double murder case. Clearly,
the report is not newly discovered, but rather recently
sought, which is not allowed by the Rules.[23] If at all,
it only serves to discredit the version of the
prosecution which had already been weighed and
assessed, and thereafter upheld by the Sandiganbayan.

The wound of entrance having been at a higher
elevation than the wound of exit, there can be no other
conclusion but that the trajectory was downward. The
fatal bullet, whether it be a Smith and Wesson
Caliber .357 magnum revolver or a .45 caliber, must
have traveled at a fast rate of speed and it stands to
reason that it took a straight path from the wound of
entrance to the wound of exit. A hole indicating this
straight path was proven to have existed. If, as
contended on cross-examination by Dr. Bienvenido
Muoz, that the bullet was projected upwards, it ought
to have exited at the roof of the head. The theory that
the fatal bullet was deflected by a mere petrous bone
is inconceivable.
Since the wound of entrance appeared ovaloid and
there is what is known as a contusion collar which
was widest at the superior portion, indicating an acute
angle of approach, a downward trajectory of the fatal
bullet is conclusively indicated. This phenomenon
indicates that the muzzle of the fatal gun was at a
level higher than that of the point of entry of the fatal
There was no hole from the petrous bone to the
mandible where the fatal bullet had exited and, thus,
there is no support to the theory of Dr. Bienvenido
Muoz that the fatal bullet had hit the petrous bone on
an upward trajectory and had been deflected by the
petrous bone towards the mandible. Dr. Juanito
Billotes testimony in this regard had amplified the
matter with clarity.

This Court affirmed said findings of the

Sandiganbayan when it denied the petition for review
in its resolution of July 25, 1991. The Court ruled:

The same is true with the statement of the alleged

eyewitness, SPO4 Cantimbuhan. His narration merely
corroborates the testimonies of other defense
witnesses during the trial that they saw Senator
The Court has carefully considered and deliberated
Aquino already walking on the airport tarmac toward
upon all the contentions of the petitioners but finds no the AVSECOM van when a man in blue-gray uniform
basis for the allegation that the respondent
darted from behind and fired at the back of the
Sandiganbayan has gravely erred in resolving the
Senators head.[24] The Sandiganbayan, however, did
factual issues.
not give weight to their account as it found the
testimonies of prosecution eyewitnesses Rebecca
The attempt to place a constitutional dimension in the Quijano and Jessie Barcelona more credible. Quijano
petition is a labor in vain. Basically, only questions of and Barcelona testified that they saw the soldier
fact are raised. Not only is it axiomatic that the factual behind Senator Aquino on the stairway aim and fire a
findings of the Sandiganbayan are final unless they
gun on the latters nape. As earlier quoted, the
fall within specifically recognized exceptions to the
Sandiganbayan found their testimonies to be more
rule but from the petition and its annexes alone, it is
consistent with the physical evidence. SPO4
readily apparent that the respondent Court correctly
Cantimbuhans testimony will not in any way alter the
resolved the factual issues.
courts decision in view of the eyewitness account of
Quijano and Barcelona, taken together with the
physical evidence presented during the trial.
Certainly, a new trial will only be allowed if the new
The trajectory of the fatal bullet, whether or not the
evidence is of such weight that it would probably
victim was descending the stairway or was on the
change the judgment if admitted.[25] Also, new trial
tarmac when shot, the circumstances showing
will not be granted if the new evidence is merely
conspiracy, the participants in the conspiracy, the
cumulative, corroborative or impeaching.
individual roles of the accused and their respective
parts in the conspiracy, the absence of evidence
As additional support to their motion for new trial,
against thirteen accused and their co-accused Col.
petitioners also claim that they were denied due
Vicente B. Tigas, Jr., the lack of credibility of the
process because they were deprived of adequate legal
witnesses against former Minister Jose D. Aspiras,
assistance by counsel. We are not persuaded. The
Director Jesus Z. Singson, Col. Arturo A. Custodio,
records will bear out that petitioners were ably
Hermilo Gosuico, Major General Prospero Olivas,
represented by Atty. Rodolfo U. Jimenez during the
and the shooting of Rolando Galman are all factual
trial and when the case was elevated to this Court. An
matters w[h]ich the respondent court discussed with
experienced lawyer in criminal cases, Atty. Jimenez
fairness and at length. The petitioners insistence that a vigorously defended the petitioners cause throughout
few witnesses in their favor should be believed while the entire proceedings. The records show that the
that of some witnesses against them should be
defense presented a substantial number of witnesses

and exhibits during the trial. After the Sandiganbayan

rendered its decision, Atty. Jimenez filed a petition for
review with this Court, invoking all conceivable
grounds to acquit the petitioners. When the Court
denied the petition for review, he again filed a motion
for reconsideration exhausting his deep reservoir of
legal talent. We therefore find petitioners claim to be
unblushingly unsubstantiated. We note that they did
not allege any specific facts in their present motion to
show that Atty. Jimenez had been remiss in his duties
as counsel. Petitioners are therefore bound by the acts
and decisions of their counsel as regards the conduct
of the case. The general rule is that the client is bound
by the action of his counsel in the conduct of his case
and cannot be heard to complain that the result of the
litigation might have been different had his counsel
proceeded differently.[26] We held in People vs.
In criminal as well as civil cases, it has frequently
been held that the fact that blunders and mistakes may
have been made in the conduct of the proceedings in
the trial court, as a result of the ignorance,
inexperience, or incompetence of counsel, does not
furnish a ground for a new trial.
If such grounds were to be admitted as reasons for
reopening cases, there would never be an end to a suit
so long as new counsel could be employed who could
allege and show that prior counsel had not been
sufficiently diligent, or experienced, or learned.
So it has been held that mistakes of attorneys as to the
competency of a witness, the sufficiency, relevancy,
materiality, or immateriality of a certain evidence, the
proper defense, or the burden of proof are not proper
grounds for a new trial; and in general the client is
bound by the action of his counsel in the conduct of
his case, and can not be heard to complain that the
result of the litigation might have been different had
counsel proceeded differently. (citations omitted)
Finally, we are not moved by petitioners assertion that
the forensic evidence may have been manipulated and
misinterpreted during the trial of the case. Again,
petitioners did not allege concrete facts to support
their crass claim. Hence, we find the same to be
unfounded and purely speculative.
IN VIEW WHEREOF, the motion is DENIED.