ROGELIO E.

RAMOS and ERLINDA RAMOS, in their own behalf and as

natural guardians of the minors, ROMMEL RAMOS, ROY
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.
DECISION
KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health
and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or incompetence or plain human error, may
spell the difference between life and death. In this sense, the doctor plays God on his patients
fate.[1]
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and
a hospital should be made liable for the unfortunate comatose condition of a patient scheduled
forcholecystectomy.[2]
Petitioners seek the reversal of the decision[3] of the Court of Appeals, dated 29 May 1995,
which overturned the decision[4]of the Regional Trial Court, dated 30 January 1992, finding
private respondents liable for damages arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh.
A) robust woman (TSN, October 19, 1989, p. 10). Except for occasional
complaints of discomfort due to pains allegedly caused by the presence of a stone in
her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance
Telephone Company, she has three children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. A and C) which
indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p.
7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June
10, 1985. They agreed that their date at the operating table at the DLSMC (another

defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a cholecystectomy operation after examining the documents
(findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to
him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologists fee and which was to be paid after the operation (TSN, October 19,
1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9,
1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of
the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,
1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared
for the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the
Dean of the College of Nursing at the Capitol Medical Center, was also there for
moral support. She reiterated her previous request for Herminda to be with her even
during the operation. After praying, she was given injections. Her hands were held
by Herminda as they went down from her room to the operating room (TSN, January
13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19,
1989, p. 18). At the operating room, Herminda saw about two or three nurses and Dr.
Perfecta Gutierrez, the other defendant, who was to administer anesthesia. Although
not a member of the hospital staff, Herminda introduced herself as Dean of the
College of Nursing at the Capitol Medical Center who was to provide moral support
to the patient, to them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka
who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
informed Herminda Cruz about the prospect of a delay in the arrival of Dr.
Hosaka. Herminda then went back to the patient who asked, Mindy, wala pa ba ang
Doctor? The former replied, Huwag kang mag-alaala, darating na iyon (ibid.).
Thereafter, Herminda went out of the operating room and informed the patients
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned
to the operating room, the patient told her, Mindy, inip na inip na ako, ikuha mo ako
ng ibang Doctor. So, she went out again and told Rogelio about what the patient said
(id., p. 15). Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for the
arrival of the doctor even as he did his best to find somebody who will allow him to
pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He

also thought of the feeling of his wife, who was inside the operating room waiting for
the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked
that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p.
21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na
raw. Upon hearing those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that Dr. Hosaka is already here. She then saw people
inside the operating room moving, doing this and that, [and] preparing the patient for
the operation (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard
Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to call Dr.
Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the
operating room, she saw this anesthesiologist trying to intubate the patient. The
patients nailbed became bluish and the patient was placed in a trendelenburg position
- a position where the head of the patient is placed in a position lower than her feet
which is an indication that there is a decrease of blood supply to the patients brain
(Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she
told Rogelio E. Ramos that something wrong was x x x happening (Ibid.). Dr.
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be back with the patient
inside the operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The
latter informed the former that something went wrong during the intubation. Reacting
to what was told to him, Rogelio reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist
(TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
happened to the patient. The doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting
to P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of
June 17, 1985, she has been in a comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of the absence of oxygen in
her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was
also diagnosed to be suffering from diffuse cerebral parenchymal damage (Exh.
G; see also TSN, December 21, 1989, p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil case [6] for damages with the Regional Trial
Court of Quezon City against herein private respondents alleging negligence in the management
and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlindas
injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to
prove that the damage sustained by Erlinda was due to lack of oxygen in her brain caused by the
faulty management of her airway by private respondents during the anesthesia phase. On the
other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora,
a pulmonologist, to the effect that the cause of brain damage was Erlindas allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment
in favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the

fact that the patient was inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the] patient, the patient's nailbed became
bluish and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part
of his obligation to provide the patient a `good anesthesiologist', and for arriving for
the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their `practice of medicine' in the operating
room. Moreover, the hospital is liable for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiffpatient. For if the patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another anesthesiologist was
called to try to intubate the patient after her (the patient's) nailbed turned bluish, belie
their claim. Furthermore, the defendants should have rescheduled the operation to a
later date. This, they should have done, if defendants acted with due care and
prudence as the patient's case was an elective, not an emergency case.
xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the

plaintiffs and against the defendants. Accordingly, the latter are ordered to pay,
jointly and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15,
1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum
of P200,000.00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED.[7]
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate
court rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The
decretal portion of the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby

REVERSED, and the complaint below against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy.
SO ORDERED.[8]
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio
Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the decision,
however, was sent nor received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing
a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a
motion for extension of time to file a motion for reconsideration. The motion for reconsideration
was submitted on 4 July 1995. However, the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995.[9] Meanwhile petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a
motion to admit the motion for reconsideration contending that the period to file the appropriate
pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of
the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p.
12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9,
1995. Computation wise, the period to file a Motion for Reconsideration expired on
June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that
alone, the latter should be denied.

Even assuming admissibility of the Motion for Reconsideration, but after considering
the Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED.[10]
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next
day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to
file the present petition for certiorari under Rule 45. The Court granted the motion for extension
of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15)
period counted from the receipt of the resolution of the Court of Appeals within which to submit
the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well
within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF

RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT

CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER
ERLINDA RAMOS;
III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.[11]

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their Comment,[12] private respondents contend that the petition should not
be given due course since the motion for reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion
for reconsideration is attributable to the fact that the decision of the Court of Appeals was not
sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9
June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished
to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period
for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the
partys lawyer at his given address. With a few exceptions, notice to a litigant without notice to
his counsel on record is no notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient
notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be
taken against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the
former should be considered in determining the timeliness of the filing of the present
petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the
case. For a more logical presentation of the discussion we shall first consider the issue on the
applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks
for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence
of an injury, taken with the surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs prima facie case, and present a question of
fact for defendant to meet with an explanation. [13] Where the thing which caused the injury
complained of is shown to be under the management of the defendant or his servants and the
accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or was caused by the defendants want
of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of occurrences may justify
an inference of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with negligence. [15] It
is grounded in the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere occurrence of the
accident itself.[16] Hence, res ipsa loquitur isapplied in conjunction with the doctrine of common
knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as
such, does not create or constitute an independent or separate ground of liability. [17] Instead, it is
considered as merely evidentiary or in the nature of a procedural rule.[18] It is regarded as a mode
of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. [19] In other words, mere
invocation and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof.[20] Still, before resort to the doctrine may
be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants;
and

3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.[21]

In the above requisites, the fundamental element is the control of the instrumentality
which caused the damage.[22] Such element of control must be shown to be within the dominion
of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident.[23]
Medical malpractice[24]cases do not escape the application of this doctrine. Thus, res ipsa
loquitur has been applied when the circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the cause of that harm. [25] The
application of res ipsa loquitur in medical negligence cases presents a question of law since it is
a judicial function to determine whether a certain set of circumstances does, as a matter of law,
permit a given inference.[26]
Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury itself provides the proof of negligence.
[27]
The reason is that the general rule on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science, and not to matters that are within the
common knowledge of mankind which may be testified to by anyone familiar with the facts.
[28]
Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to
whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by nonexpert witnesses.[29] Hence, in cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to the patient, without the aid
of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care.[30] Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why
it occurred.[31] When the doctrine is appropriate, all that the patient must do is prove a nexus
between the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation, [32] injuries
sustained on a healthy part of the body which was not under, or in the area, of treatment,

removal of the wrong part of the body when another part was intended, [34] knocking out a tooth
while a patients jaw was under anesthetic for the removal of his tonsils, [35] and loss of an eye
while the patient plaintiff was under the influence of anesthetic, during or following an operation
for appendicitis,[36] among others.
[33]

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to mechanically
shift the burden of proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as a matter of common
knowledge and observation, that the consequences of professional care were not as such as
would ordinarily have followed if due care had been exercised. [37] A distinction must be made
between the failure to secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can
have no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. [38] The physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct, or why any particular scientific treatment
did not produce the desired result.[39] Thus, res ipsa loquitur is not available in a malpractice suit
if the only showing is that the desired result of an operation or treatment was not accomplished.
[40]
The real question, therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance occurred which is
beyond the regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the negligent cause or
causes of the untoward consequence. [41] If there was such extraneous interventions, the doctrine
of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could.[42]
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter
be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where the Kansas
Supreme Court in applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his
person over to the care, custody and control of his physician who had complete and
exclusive control over him, but the operation was never performed. At the time of
submission he was neurologically sound and physically fit in mind and body, but he
suffered irreparable damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a
person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and
under these circumstances a layman would be able to say, as a matter of common

knowledge and observation, that the consequences of professional treatment were not
as such as would ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he
was under the influence of anesthetics and unconscious, and the circumstances are
such that the true explanation of event is more accessible to the defendants than to the
plaintiff for they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a
cause of action is stated under the doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not happen in the absence of negligence of
someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a
person being put under anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda
could not have been guilty of contributory negligence because she was under the influence of
anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or
destroyed while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa
loquitur. Upon these facts and under these circumstances the Court would be able to say, as a
matter of common knowledge and observation, if negligence attended the management and care
of the patient. Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a case is made out for the application of
the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not
saying that the doctrine is applicable in any and all cases where injury occurs to a patient while
under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light
and scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlindas comatose condition. Corollary thereto, we shall also determine
if the Court of Appeals erred in relying on the testimonies of the witnesses for the private
respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the
testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony
of Dra. Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal intubation[45]of the patient and thus, cannot be
said to be covering her negligence with falsehood. The appellate court likewise opined that
private respondents were able to show that the brain damage sustained by Erlinda was not caused
by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug
Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness,
Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda
Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the
wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in
the process of intubation. In so holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them of any liability towards Erlinda and her
family.
We disagree with the findings of the Court of Appeals. We hold that private respondents
were unable to disprove the presumption of negligence on their part in the care of Erlinda and
their negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific
evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private respondents own testimonies
which are reflected in the transcript of stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the
anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate
the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical
Center School of Nursing and petitioner's sister-in-law, who was in the operating room right
beside the patient when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q:

In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A:

In particular, I could see that she was intubating the patient.

Q:

Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:

Witness may answer if she knows.

A:

As I have said, I was with the patient, I was beside the stretcher holding the left hand of the
patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan.

xxx
ATTY. PAJARES:
Q:

From whom did you hear those words lumalaki ang tiyan?

A:

From Dra. Perfecta Gutierrez.

xxx
After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the patient?
A:

I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q:

Where was Dr. Orlino Ho[s]aka then at that particular time?

A:

I saw him approaching the patient during that time.

Q:

When he approached the patient, what did he do, if any?

A:

He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q:

Did Dr. Calderon, upon being called, arrive inside the operating room?

A:

Yes sir.

Q:

What did [s]he do, if any?

A:

[S]he tried to intubate the patient.

Q:

What happened to the patient?

A:

When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed became
bluish and I saw the patient was placed in trendelenburg position.

xxx
Q:

Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to
the brain.[46]
xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by
declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation
is not taught as part of nursing procedures and techniques. Indeed, we take judicial
notice of the fact that nurses do not, and cannot, intubate. Even on the assumption
that she is fully capable of determining whether or not a patient is properly intubated,
witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN,

July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated
the patient or that she conducted any type of examination to check if the endotracheal
tube was in its proper place, and to determine the condition of the heart, lungs, and
other organs. Thus, witness Cruz's categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer from lack of sufficient factual bases. [47]
In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is
not an anesthesiologist, she can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician and surgeon, external appearances,
and manifest conditions which are observable by any one. [48] This is precisely allowed under the
doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for the proof of negligence in non-technical
matters or those of which an ordinary person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert testimony unnecessary. [49] We take
judicial notice of the fact that anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As such, it would not be too difficult to
tell if the tube was properly inserted. This kind of observation, we believe, does not require a
medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long
experience and scholarship led to her appointment as Dean of the Capitol Medical Center School
of Nursing, was fully capable of determining whether or not the intubation was a success. She
had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of
Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of Nursing.
[50]
Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward
manner, with the kind of detail, clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was
able to demonstrate through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who
admitted that she experienced difficulty in inserting the tube into Erlindas trachea, to wit:
ATTY. LIGSAY:
Q:

In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?

DRA. GUTIERREZ:
A:

Yes sir.

Q:

Did you pull away the tube immediately?

A:

You do not pull the ...

Q:

Did you or did you not?

A:

I did not pull the tube.

Q:

When you said mahirap yata ito, what were you referring to?

A:

Mahirap yata itong i-intubate, that was the patient.

Q:

So, you found some difficulty in inserting the tube?

A:

Yes, because of (sic) my first attempt, I did not see right away. [51]

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal anatomy of a person)[52] making it
harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents
adduced no evidence demonstrating that they proceeded to make a thorough assessment of
Erlindas airway, prior to the induction of anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is
universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation
and preparation for anesthesia begins when the anesthesiologist reviews the patients medical
records and visits with the patient, traditionally, the day before elective surgery. [53] It includes
taking the patients medical history, review of current drug therapy, physical examination and
interpretation of laboratory data.[54] The physical examination performed by the anesthesiologist
is directed primarily toward the central nervous system, cardiovascular system, lungs and upper
airway.[55] A thorough analysis of the patient's airway normally involves investigating the
following: cervical spine mobility, temporomandibular mobility, prominent central incisors,
diseased or artificial teeth, ability to visualize uvula and the thyromental distance. [56] Thus,
physical characteristics of the patients upper airway that could make tracheal intubation difficult
should be studied.[57] Where the need arises, as when initial assessment indicates possible
problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination
of the patients airway would go a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time
on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She
was likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for
the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around
with the trial court's ignorance of clinical procedure, hoping that she could get away with

it. Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency surgery just so her failure to perform the required pre-operative evaluation would
escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day
before so you can introduce yourself to establish good doctor-patient relationship and
gain the trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary
clearance like that, I usually don't do it except on emergency and on cases that have an
abnormalities (sic).[58]
However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able
to see the patient only a few minutes before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks or even months. Hence, in these
cases, the anesthesiologist possesses the luxury of time to make a proper assessment, including
the time to be at the patient's bedside to do a proper interview and clinical evaluation. There is
ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative assessment is conducted at least
one day before the intended surgery, when the patient is relaxed and cooperative.
Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she had
all the time to make a thorough evaluation of Erlindas case prior to the operation and prepare
her for anesthesia. However, she never saw the patient at the bedside. She herself admitted that
she had seen petitioner only in the operating room, and only on the actual date of
the cholecystectomy. She negligently failed to take advantage of this important opportunity. As
such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation
of the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to
Erlindas coma was due to bronchospasm[59] mediated by her allergic response to the drug,
Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board
of Internal Medicine, who advanced private respondents' theory that the oxygen deprivation
which led to anoxic encephalopathy,[60] was due to an unpredictable drug reaction to the shortacting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology
simply because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not
have been capable of properly enlightening the court about anesthesia practice and procedure and
their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert
witness in the anesthetic practice of Pentothal administration is further supported by his own
admission that he formulated his opinions on the drug not from the practical experience gained
by a specialist or expert in the administration and use of Sodium Pentothal on patients, but only
from reading certain references, to wit:
ATTY. LIGSAY:
Q:

In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method
of management?

DR. JAMORA:
A:

We do it in conjunction with the anesthesiologist when they have to intubate our patient.

Q:

But not in particular when you practice pulmonology?

A:

No.

Q:

In other words, your knowledge about pentothal is based only on what you have read from books
and not by your own personal application of the medicine pentothal?

A:

Based on my personal experience also on pentothal.

Q:

How many times have you used pentothal?

A:

They used it on me. I went into bronchospasm during my appendectomy.

Q:

And because they have used it on you and on account of your own personal experience you feel
that you can testify on pentothal here with medical authority?

A:

No. That is why I used references to support my claims. [61]

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within

the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting
anoxic encephalopathy belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine,
Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this
case is within the disciplines of anesthesiology, allergology and pharmacology. On the basis of
the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to
Dr. Jamoras testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence[62]regarding expert witnesses states:

Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter

requiring special knowledge, skill, experience or training which he is shown to
possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities on
the subject or by practical experience.[63] Clearly, Dr. Jamora does not qualify as an expert witness
based on the above standard since he lacks the necessary knowledge, skill, and training in the
field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong
field, private respondents intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response, has no support in evidence. No evidence of
stridor, skin reactions, or wheezing - some of the more common accompanying signs of an
allergic reaction - appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergicmediated bronchospasm happens only very rarely. If courts were to accept private respondents'
hypothesis without supporting medical proof, and against the weight of available evidence, then
every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory
vigorously asserted by private respondents was a mere afterthought. Such an explanation was
advanced in order to absolve them of any and all responsibility for the patients condition.
In view of the evidence at hand, we are inclined to believe petitioners stand that it was the
faulty intubation which was the proximate cause of Erlindas comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and without which the result would
not have occurred.[64] An injury or damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that the act or omission played a substantial
part in bringing about or actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of the act or omission. [65] It is the
dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is
undeniably the proximate cause which triggered the chain of events leading to Erlindas brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a
failure. This fact was likewise observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan. Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead
of the intended endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the gastrointestinal
tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus
would certainly cause some delay in oxygen delivery into the lungs as the tube which carries

oxygen is in the wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the
time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay in
the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. [66] As stated in the
testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue.[67]However, private respondents contend that a second
intubation was executed on Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims, which supports the
contention that the second intubation was successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen
delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed
immediately after the second intubation. Proceeding from this event (cyanosis), it could not be
claimed, as private respondents insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the second attempt, it was obviously too
late. As aptly explained by the trial court, Erlinda already suffered brain damage as a result of
the inadequate oxygenation of her brain for about four to five minutes.[68]
The above conclusion is not without basis. Scientific studies point out that intubation
problems are responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia.[69]Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough evaluation of the patients airway prior to the
operation.[70] As stated beforehand, respondent Dra. Gutierrez failed to observe the proper preoperative protocol which could have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the contingency brought about by the perceived
anatomic variations in the patients neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique. [71] In
other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative
evaluation, would have had little difficulty going around the short neck and protruding teeth.
[72]
Having failed to observe common medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez negligence resulted in cerebral anoxia and eventual coma
of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the
surgical team. As the so-called captain of the ship,[73] it is the surgeons responsibility to see to
it that those under him perform their task in the proper manner. Respondent Dr. Hosakas
negligence can be found in his failure to exercise the proper authority (as the captain of the
operative team) in not determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that
respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time
as Erlindas cholecystectomy, and was in fact over three hours late for the latters
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding
the anesthesia delivery. This indicates that he was remiss in his professional duties towards his
patient. Thus, he shares equal responsibility for the events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this particular incident. The unique
practice (among private hospitals) of filling up specialist staff with attending and visiting

consultants,[74] who are allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants
and in the conduct of their work within the hospital premises. Doctors who apply for
consultant slots, visiting or attending, are required to submit proof of completion of residency,
their educational qualifications; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee set up
by the hospital who either accept or reject the application. [75] This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally
required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns
and residents, moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the physicians performance
as a specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting consultant staff. While consultants are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the patients condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent doctors for petitioners condition.[76]
The basis for holding an employer solidarily responsible for the negligence of its employee
is found in Article 2180 of the Civil Code which considers a person accountable not only for his
own acts but also for those of others based on the formers responsibility under a relationship
of patria potestas.[77] Such responsibility ceases when the persons or entity concerned prove that
they have observed the diligence of a good father of the family to prevent damage. [78] In other
words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown,
the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove
that they observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the latter. It failed to adduce evidence
with regard to the degree of supervision which it exercised over its physicians. In neglecting to
offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its

burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on
the testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily liable for damages under Article
2176[79] of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total
of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff,
subject to its being updated covering the period from 15 November 1985 up to 15 April 1992,
based on monthly expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its
decision would be grossly inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even arrived at by looking at the actual cost
of proper hospice care for the patient. What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced to bring home the patient to avoid mounting
hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is
done by nasogastric tube. Food preparation should be normally made by a dietitian to provide
her with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to
be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the
care the family is usually compelled to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those
suffered by him as he has duly proved. The Civil Code provides:

Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation,
the injury suffered as a consequence of an act of negligence has been completed and that the cost
can be liquidated. However, these provisions neglect to take into account those situations, as in
this case, where the resulting injury might be continuing and possible future complications
directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately
and correctly respond to the injury caused, should be one which compensates for pecuniary loss
incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the case, be made with certainty. [80] In other
words, temperate damages can and should be awarded on top of actual or compensatory damages
in instances where the injury is chronic and continuing. And because of the unique nature of
such cases, no incompatibility arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct phases.
As it would not be equitable - and certainly not in the best interests of the administration of
justice - for the victim in such cases to constantly come before the courts and invoke their aid in
seeking adjustments to the compensatory damages previously awarded - temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a
comatose patient who has remained in that condition for over a decade. Having premised our
award for compensatory damages on the amount provided by petitioners at the onset of litigation,
it would be now much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for anything
less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a situation where the
injury suffered by the plaintiff would have led to expenses which were difficult to estimate
because while they would have been a direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic

amputation of her left lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived of the full
ambulatory functions of her left extremity, even with the use of state of the art
prosthetic technology. Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo adjustments in her prosthetic
devise due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical
and occupational rehabilitation and therapy. During her lifetime, the prosthetic
devise will have to be replaced and readjusted to changes in the size of her
lower limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have
to be adjusted to respond to the changes in bone resulting from a precipitate
decrease in calcium levels observed in the bones of all post-menopausal

women. In other words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and adjusting to the
physiologic changes which her body would normally undergo through the
years. The replacements, changes, and adjustments will require corresponding
adjustive physical and occupational therapy. All of these adjustments, it has
been documented, are painful.
x x x.

A prosthetic devise, however technologically advanced, will only allow a

reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety,
sleeplessness, psychological injury, mental and physical pain are inestimable. [83]
The injury suffered by Erlinda as a consequence of private respondents negligence is
certainly much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been
in a comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband and children, who, in the intervening years have been deprived of the
love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would
be virtually impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioners condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual injury would not even
scratch the surface of the resulting moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain, psychological damage and injury suffered by
the victim or those actually affected by the victims condition. [84] The husband and the children,
all petitioners in this case, will have to live with the day to day uncertainty of the patients
illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives
around the nursing care of petitioner, altering their long term goals to take into account their life
with a comatose patient. They, not the respondents, are charged with the moral responsibility of
the care of the victim. The familys moral injury and suffering in this case is clearly a real
one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be
appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the opinion that
attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because
physicians are not insurers of life and, they rarely set out to intentionally cause injury or death to
their patients. However, intent is immaterial in negligence cases because where negligence exists
and is proven, the same automatically gives the injured a right to reparation for the damage
caused.
Established medical procedures and practices, though in constant flux are devised for the
purpose of preventing complications. A physicians experience with his patients would

sometimes tempt him to deviate from established community practices, and he may end a
distinguished career using unorthodox methods without incident. However, when failure to
follow established procedure results in the evil precisely sought to be averted by observance of
the procedure and a nexus is made between the deviation and the injury or damage, the physician
would necessarily be called to account for it. In the case at bar, the failure to observe preoperative assessment protocol which would have influenced the intubation in a salutary way was
fatal to private respondents case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1)P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorneys fees; and, 5) the
costs of the suit.
SO ORDERED.