Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 163879

July 30, 2014

DR. ANTONIO P. CABUGAO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA and ROSARIO F.
PALMA, Respondents.
x-----------------------x
G.R. No. 165805
DR. CLENIO YNZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA AND ROSARIO F.
PALMA,Respondents.
DECISION
PERALTA, J.:
Before this Court are appeals via Rule 45 from the Decision dated June 4, 2004 of the Court of
Appeals in CA-G.R. CR No. 27293, affirming the Decision dated February 28,2003 of the Regional
Trial Court (RTC), convicting appellant Dr. Antonio P. Cabugao (Dr. Cabugao) and Dr. Clenio Ynzon
(Dr. Ynzon) of the crime of Reckless Imprudence Resulting to Homicide.
1

The Information alleged

3

That on or about June 17, 2000in the City of Dagupan, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, DR. ANTONIO P.CABUGAO and DR. CLENIO YNZON,
being then the attending physicians of one RODOLFO PALMA, JR., a minor 10 years old,
confederating and acting jointly with one another, did, then and there, willfully, unlawfully and
feloniously fail through negligence, carelessness and imprudence to perform immediate operation
upon their patient, RODOLFO PALMA, JR. of acute appendicitis, when they, the said physicians,
should have been done so considering that examinations conducted upon their patient Rodolfo
Palma, Jr. seriously manifest todo so, causing by such negligence, carelessness, and imprudence
the victim, RODOLFO PALMA JR., to die due to:
"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY, SEPTICEMIA (ACUTE
APPENDICITIS), CEREBRAL ANEURYSM RUPTURED (?)"

As per Certificate of Death issued by accused Dr. Antonio P. Cabugao, to the damage and prejudice
of the legal heirs of said deceased RODOLFO PALMA, JR. and other consequential damages
relative thereto.
CONTRARY to Article 365, 1st par. of the Revised Penal Code.
Dagupan City, Philippines, January 29, 2001.
Arising from the same events, the Court resolved to consolidate these cases. The facts, as culled
from the records, are as follows:
4

On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year old Rodolfo F. Palma, Jr. (JR)
complained of abdominal pain to his mother, Rosario Palma. At 5 oclock that sameafternoon,
Palma's mother and father, Atty. Rodolfo Palma Sr., brought JR to the clinic of accused Dr. Cabugao.
Dr. Cabugao, a general practitioner, specializing in familymedicine gave medicines for the pain and
told Palma's parents to call him up if his stomach pains continue. Due to persistent abdominal pains,
at 4:30 in the early morning of June 15, 2000, they returnedto Dr. Cabugao, who advised them to
bring JR to the Nazareth General Hospital in Dagupan City, for confinement. JR was admitted at the
said hospital at 5:30 in the morning.
5

Blood samples were taken from JR for laboratory testing. The complete blood count conveyed the
following result: wbc 27.80 x 10 9/L; lymphocytes 0.10 and neutrophils 0.90. Diagnostic
ultrasound was likewise conducted on the patient's lower abdomen by radiologist, Dr. Ricky V.
Querubin, with the following findings:
Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and urinary bladder.
There is no free peritoneal fluid.
There is localized tenderness in the paraumbilical region, more so in the supra and right
paraumbilical areas.
There is a vague elongated hypoechoic focus in the right periumbilical region roughly about 47 x 18
mm surrounded by undistended gas-filled bowels. This is suggestive of an inflammatory process
wherein appendiceal or periappendiceal pathology cannot be excluded. Clinical correlation is
essential."
6

Dr. Cabugao did a rectal examination noting the following: "rectal: good sphincter, negative
tenderness, negative mass." The initial impression was Acute Appendicitis, and hence, he referred
the case to his co-accused, Dr. Ynzon, a surgeon. In the later part of the morning of June 15, 2000,
Dr. Ynzon went to the hospital and readthe CBC and ultrasound results. The administration of
massive antibiotics and pain reliever to JRwere ordered. Thereafter, JR was placed on observation
for twenty-four (24) hours.
7

In the morning of June 16, 2000, JR complained again of abdominal pain and his parents noticeda
swelling in his scrotum. In the afternoon of the same day, JR vomitted out greenish stuff three (3)
times and had watery bowels also three (3) times. The nurses on-duty relayed JR's condition to Dr.
Ynzon who merely gaveorders via telephone. Accused continued medications to alleviate JR's
9

abdominal spasms and diarrhea. By midnight, JR again vomitted twice, had loose bowel movements
and was unable to sleep. The following morning, June 17,2000, JR's condition worsened, he had a
running fever of 38C. JR's fever remained uncontrolled and he became unconscious, he was given
Aeknil (1 ampule) and Valium (1 ampule). JR's condition continued to deteriorate that by 2 o'clock in
the afternoon, JR's temperature soared to 42C, had convulsions and finally died.
The Death Certificate dated June 19, 2000 prepared by Dr. Cabugao indicated the following causes
of death:
10

Immediate cause: CARDIORESPIRATORY ARREST

Antecedent cause: METABOLIC ENCEPHALOPATHY
Underlying cause: SEPTICEMIA (ACUTE APPENDICITIS)
Other significant conditionscontributing to death:
CEREBRAL ANEURYSM RUPTURED (?)
No post-mortem examination was conducted on JR. On February 1, 2001, an Information was filed
against accused for reckless imprudence resulting to homicide. At their arraignment, both accused,
duly assisted by counsel, pleaded not guilty to the charge.
On February 28, 2003, in convicting both the accused, the trial court found the following
circumstances as sufficient basis to conclude that accused were indeed negligent in the
performance of their duties:
It is unquestionable that JR was under the medical care of the accused from the time of his
admission for confinement at the Nazareth General Hospital until his death. Upon his admission, the
initial working diagnosis was to consider acute appendicitis. To assist the accused in the
consideration of acute appendicitis, Dr. Cabugao requested for a complete blood count (CBC) and a
diagnostic ultrasound on JR. The findings of the CBC and ultrasound showed that an inflammatory
process or infection was going on inside the body of JR. Said inflammatory process was happening
in the periumbilical region where the appendix could be located. The initial diagnosis of acute
appendicitis appears to be a distinct possibility. x x x.
Dr. Ynzon ordered medications to treat the symptoms being manifested by JR. Thereafter, he
ordered that JR be observed for 24 hours. However, the accused, as the attending physicians, did
not personally monitor JR in order to check on subtle changes that may occur. Rather, they left the
monitoring and actual observation to resident physicians who are just on residency training and in
doing so, they substituted their own expertise, skill and competence with those of physicians who
are merely new doctors still on training. Not having personally observed JR during this 24-hour
critical period of observation, the accused relinquished their duty and thereby were unable to give
the proper and correct evaluation as to the real condition of JR. In situations where massive infection
is going on as shown by the aggressive medication of antibiotics, the condition of the patient is
serious which necessitated personal, not delegated, attention of attending physicians, namely JR
and the accused in this case.

xxxx
Throughout the course of the hospitalization and treatment of JR, the accused failed to address the
acute appendicitis which was the initial diagnosis. They did not take steps to find out if indeed acute
appendicitis was what was causing the massive infection that was ongoing inside the body of JR
even when the inflammatory process was located at the paraumbilical region where the appendix
can be located. x x x
There may have been other diseases but the records do not show that the accused took steps to
find outwhat disease exactly was plaguing JR. It was their duty to find out the disease causing the
health problem of JR, but they did not perform any process of elimination. Appendicitis, according to
expert testimonies, could be eliminated only by surgery but no surgery was done by the accused.
But the accused could not have found out the real disease of JR because they were treating merely
and exclusively the symptoms by means of the different medications to arrest the manifested
symptoms. In fact, by treating the symptoms alone, the accused were recklessly and wantonly
ignoring the same as signs of the graver health problem of JR. This gross negligence on the part of
the accused allowed the infection to spread inside the body of JR unabated. The infection obviously
spread so fastand was so massive that within a period of only two and a half (2 ) days from the day
of admission to the hospital on June 15, 2000, JR who was otherwise healthy died [of] Septicemia
(Acute Appendicitis) on June 17, 2000.
11

On June 4, 2004, in affirming the accused' conviction, the Court of Appeals gave similar
observations, to wit:
The foregoing expert testimony clearly revealed such want of reasonable skill and care on the part of
JR's attending physicians, appellants Dr. Cabugao and Dr. Ynzon in neglecting to monitor effectively
and sufficiently the developments/changes during the observation period and act upon the situation
after said 24-hour period when his abdominal pain subsisted, his condition even worsened with the
appearance of more serious symptoms of nausea, vomiting and diarrhea. Considering the brief visit
only made on regular rounds, the records clearly show such gross negligence in failing to take
appropriate steps to determine the real cause of JR's abdominal pain so that the crucial decision to
perform surgery (appendectomy) had even been ruled out precisely because of the inexcusable
neglect to undertake suchefficient diagnosis by process of elimination, as correctly pointed out by
the trial court. As has been succinctly emphasized by Dr. Mateo, acute appendicitis was the working
diagnosis, and with the emergence of symptoms after the 24-hour observation (high fever, vomiting,
diarrhea) still, appellants ruled out surgery, not even considering exploratory laparoscopy. Dr. Mateo
also expressed the opinion that the decision to operate could have been made after the result of the
ultrasound test, considering that acute appendicitis was the initial diagnosis by Dr. Cabugao after he
had conducted a rectal examination.
Medical records buttress the trial court's finding that in treating JR, appellants have demonstrated
indifference and neglect of the patient's condition as a serious case. Indeed, appendicitis remains a
clinical emergencyand a surgical disease, as correctly underscored by Dr. Mateo, a practicing
surgeon who has already performed over a thousand appendectomy. In fact, appendectomy is the
only rational therapy for acute appendicitis; it avoids clinical deterioration and may avoid chronic or
recurrent appendicitis. Although difficult, prompt recognition and immediate treatment of the disease
prevent complications. Under the factual circumstances, the inaction, neglect and indifference of
appellants who, after the day of admission and after being apprised of the ongoing infection from the
CBC and initial diagnosis as acute appendicitis from rectal examination and ultrasound testand only

briefly visited JR once during regular rounds and gave medication orders by telephone constitutes
gross negligenceleading to the continued deterioration of the patient, his infection having spread in
sofast a pace that he died within just two and a half (2 ) days stay inthe hospital. Authorities state
that if the clinical picture is unclear a short period of 4 to 6 hours of watchful waiting and a CT scan
may improve diagnostic accuracy and help to hasten diagnosis.Even assuming that JR's case had
an atypical presentation in view of the location of his appendix, laboratory tests could have helped to
confirm diagnosis, as Dr. Mateo opined thatthe possibility of JR having a retrocecal appendicitis
should have been a strong consideration. Lamentably, however, as found by the trial court,
appellants had not taken steps towards correct diagnosis and demonstrated laxity even when JR
was already running a high fever in the morning of June 17, 2000 and continued vomiting with
diarrhea, his abdominal pain becoming more intense. This is the reason why private complainants
were not even apprised of the progress of appellants' diagnosis appellants have nothing to report
because they did nothing towards the end and merely gave medications to address the symptoms.
12

Thus, these appeals brought beforethis Court raising the following arguments:
I
WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE INFORMATION IS "FAILURE
TO PERFORM IMMEDIATE OPERATION UPON THE PATIENT ROFOLFO PALMA JR. OF ACUTE
APPENDICITIS;
II
WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED BOTH ACCUSED
DOCTORS OF CONSPIRACY AND THE APPEALED DECISION SEEMS TO HAVE TREATED
BOTH ACCUSED DOCTORS TO BE IN CONSPIRACY;
III
WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER (NOT A SURGEON)
AND HAVE EXCLUDED SURGERY FROM THE LIMITS OFHIS PRACTICE, AND IT WAS NOT AND
NEVER HIS DUTY TO OPERATE THE PATIENT RODOLFO PALMA JR., THAT WAS WHY HE
REFERRED SUBJECT PATIENT TO A SURGEON, DR. CLENIO YNZON;
IV
WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE THAT DOING
SURGERY WOULD HAVE SAVED THE PATIENT;
V
WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING PROSECUTION'S EXPERT
WITNESSES EVER DECLARED/TESTIFIED THAT PETITIONER DR. CABUGAO HAD THE DUTY
TO PERFORM IMMEDIATE OPERATION ON RODOLFO PALMA, JR., AND THEY FAILED TO
STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH OF JR WAS ACUTE APPENDICITIS;
VI

WHETHER THE EXPERT WITNESSES PRESENTED BY THE PROSECUTION EVER

QUESTIONED THE MANAGEMENT AND CARE APPLIED BY PETITIONER DR. CABUGAO;
VII
WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE ARE UNANIMOUS IN
APPROVING THE METHOD OF TREATMENT APPLIED BY BOTH ACCUSED DOCTORS ON
SUBJECT PATIENT, AND THEY DECLARED/AFFIRMED THAT THEY WOULD FIRST PLACE
SUBJECT THE PATIENT UNDER OBSERVATION, AND WOULD NOT PERFORM IMMEDIATE
OPERATION;
VIII
WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS ESTABLISHED WITH THE
REQUIRED QUANTUM OF PROOF BEYOND REASONABLE DOUBT THAT THE PATIENT WAS
SPECIFICALLY SUFFERING FROM AND DIED OF ACUTE APPENDICITIS; and
IX
WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL OPERATION KNOWN AS
APPENDECTOMY CONSTITUTED CRIMINAL NEGLIGENCE.
In a nutshell, the petition brought before this Court raises the issue of whether or not petitioners'
conviction of the crime of reckless imprudence resulting in homicide, arising from analleged medical
malpractice, is supported by the evidence on record.
Worth noting is that the assigned errors are actually factual in nature, which as a general rule,
findings of factof the trial court and the Court of Appeals are binding and conclusiveupon this Court,
and we will not normally disturb such factual findings unless the findings of the court are palpably
unsupported by the evidence on record or unless the judgment itself is based on misapprehension of
facts. Inthe instant case, we find the need to make certain exception.
AS TO DR. YNZON'S LIABILITY:
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 precautionon the part of the person
performing or failing to perform such act. The elements of reckless 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 bewithout malice; (4) that material damage results from the reckless 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.
13

14

With respect to Dr. Ynzon, all the requisites of the offense have been clearly established by the
evidence on record. The court a quoand the appellate court were one in concluding that Dr. Ynzon
failed to observe the required standard of care expected from doctors.

In the instant case, it was sufficiently established that to prevent certain death, it was necessary to
perform surgery on JR immediately. Even the prosecutions own expert witness, Dr. Antonio
Mateo, testified during cross-examination that he would perform surgery on JR:
15

ATTY. CASTRO:
Q. Given these data soft non-tender abdomen, ambulatory, watery diarrhea, Exhibit C which is the
ultrasound result, with that laboratory would you operate the patient?
A Yes, I would do surgery.
Q And you should have done surgery with this particular case?"
A Yes, sir.

16

xxxx
COURT:
Q You stated a while ago doctor thatyou are going to [do] surgery to the patient, why doctor, if you
are notgoing to do surgery, what will happen?
A If this would be appendicitis, the usual progress would be that it would be ruptured and
generalized peritonitis and eventually septicemia, sir.
Q What do you mean by that doctor?
A That means that infection would spread throughout the body, sir.
Q If unchecked doctor, what will happen?
A It will result to death.

17

xxxx
Q And what would have you doneif you entertain other considerations from the time the patient was
admitted?
A From the time the patient was admitted until the report of the sonologist, I would have made a
decision by then.
Q And when to decide the surgery would it be a particular exact time, would it be the same for all
surgeons?
A If you are asking acute appendicitis, it would be about 24 hours because acute appendicitis is a
24-hour disease, sir.
Q. And would it be correct to say that it depends on the changes on the condition of the patient?

A. Yes, sir.
Q. So, are you saying more than 24 hours when there are changes?
A. If there are changes in the patient pointing towards appendicitis then you have to decide right
there and then, sir.
Q. So if there are changes in the patient pointing to appendicitis?
A. It depends now on what you are trying to wait for in the observation period, sir.
Q. So precisely if the change is a condition which bring you in doubt that there is something else
other than appendicitis, would you extend over a period of 24 hours?
A. It depends on the emergent development, sir.
Q. That is the point, if you are the attending physician and there is a change not pointing to
appendicitis, would you extend over a period of 24 hours?
A. In 24 hours you have to decide, sir.
xxxx
Q. And that is based on the assessment of the attending physician?
A. Yes, sir.

18

Dr. Mateo further testified on cross-examination:

ATTY. CASTRO:
Q: So you will know yourself, as far as the record is concerned, because if you will agree with me,
you did not even touch the patient?
A. Yes, I based my opinion on what is put on record, sir. The records show that after the observation
period, the abdominal pain is still there plus there are already other signs and symptoms which are
not seen or noted.
Q. But insofar as you yourself not having touched the abdomen of the patient, would you give a
comment on that?
A. Yes, based on the record, after 24 hours of observation, the pain apparently was still there and
there was more vomiting and there was diarrhea. In my personal opinion, I think the condition of the
patient was deteriorating.
Q. Even though you have not touched the patient?
A. I based on what was on the record, sir.

19

From the foregoing, it is clear that if JRs condition remained unchecked it would ultimately result in
his death, as what actually happened in the present case. Another expert witness for the defense,
Dr. Vivencio Villaflor, Jr. testified on direct examination that he would perform a personal and
thorough physical examination of the patient as frequent as every 4 to 6 hours, to wit:
ATTY. CASTRO:
Q. As an expert doctor, if you were faced with a history of abdominal pain with nausea, vomiting,
fever, anurecia (sic), elevated white blood cell count, physical examination of a positive psoas sign,
observation of the sonologist of abdominal tenderness and the ultrasound findings of the probability
of appendiceal (sic) pathology, what will you do if you have faced these problems, Doctor?
A. I will examine the patient thoroughly and it will depend on my physical examination and that
isprobably every 4 to 6 hours, sir.
20

On cross-examination, Dr. Villaflor affirmed:

Cross Exam. By Atty. Marteja:
Q. x x x However, there are corrections and admissions made at that time, your Honor, do I
understand thatT/C does not mean ruled out but rather to consider the matter?
A. Yes, now that I have seen the records of the patient, it says here, impression and T/C means to
consider the appendicitis.
Q. Isn't it that it is worth then to say that the initial working diagnosis on Rodolfo Palma, Jr.,
otherwise known as JR, to whom I shall now refer to as JR, the primary consideration then is acute
appendicitis, is that correct to say Doctor?
A. I think so, that is the impression.
Q. x x x Now if it is to be considered as the primary consideration in the initial working diagnosis, isn't
it a fact that it has tobe ruled out in order to consider it as not the disease of JR?
A. Yes. Sir.
Q. Isn't it a fact thatto rule out acute appendicitis as not the disease of JR, surgery or operation must
be done, isn't it Doctor?
A. You have to correlate all the findings.
Q. Is it yes or no, Doctor?
A. Yes.
Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation,
that is right Doctor?

A. No, sir. If your diagnosis is toreally determine if it is an acute appendicitis, you have to operate.

21

xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain,
considering that JR likewise was feverish and that he was vomiting, does that not show a disease of
acute appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the impression then Doctor what you have earlier
mentioned that the only way to rule out the suspect which is acute appendicitis is by surgery, you
have said that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.

22

Verily, whether a physician or surgeon has exercised the requisite degree of skill and care in the
treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of
courts to the expert opinions of qualified physicians stems from its realization that the latter possess
unusual technical skills which laymen in most instances are incapable of intelligently
evaluating. From the testimonies of the expert witnesses presented, it was irrefutably proven that
Dr. Ynzon failed to practice that degree of skill and care required in the treatment of his patient.
23

As correctly observed by the appellate court, Dr. Ynzon revealed want of reasonable skill and care in
attending to the needs of JR by neglecting to monitor effectively the developmentsand changes on
JR's condition during the observation period, and to act upon the situation after the 24-hour period
when his abdominal pain persisted and his condition worsened. Lamentable, Dr. Ynzon appeared to
have visited JRbriefly only during regular rounds in the mornings. He was not there during the crucial
times on June 16, 2000 when JR's condition started to deteriorate until JR's death. As the attending
surgeon, he should be primarily responsible in monitoring the condition of JR, as he is in the best
position considering his skills and experience to know if the patient's condition had deteriorated.
While the resident-doctors-onduty could likewise monitor the patientscondition, he is the one directly
responsible for the patient as the attending surgeon. Indeed, it is reckless and gross negligence of
duty to relegate his personal responsibility to observe the condition of the patient. Again, acute
appendicitis was the working diagnosis, and with the emergence of graver symptoms after the 24hour observation, Dr. Ynzon ruled out surgery for no apparent reason. We, likewise, note that the
records are devoid of showing of any reasonable cause which would lead Dr. Ynzon tooverrule
appendectomy despite the initial diagnosis of appendicitis. Neitherwas there any showing that he
was entertaining another diagnosis nor he took appropriate steps towards another diagnosis.
Among the elements constitutive of reckless imprudence, what perhaps is most central to a finding
of guilt is the conclusive determination that the accused has exhibited, by his voluntary act without
malice, an inexcusable lack of precaution. It is that which supplies the criminal intent so
indispensable as tobring an act of mere negligence and imprudence under the operation of the penal
law. This is because a conscious indifference to the consequences of the conduct is all that is
required from the standpoint of the frame of mind of the accused. Quasioffenses penalize the mental
attitudeor condition behind the act, the dangerous recklessness, the lack of care or foresight, the
"imprudencia punible," unlike willful offenses which punish the intentional criminal act. This is
precisely where this Court found Dr. Ynzon to be guilty of - his seemingly indifference to the
24

25

deteriorating condition of JR that he as a consequence, failed to exercise lack of precaution which

eventually led to JR's death.
To be sure, whether or not a physician has committed an "inexcusable lack of precaution" in the
treatment of his patient is to be determined according to the standard of care observed by other
members of the profession in good standing under similar circumstances bearing in mind the
advanced state of the profession at the time of treatment or the present state of medical science. In
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. Sadly, Dr. Ynzon did not display that degree of care and precaution demanded by
the circumstances.
26

AS TO DR. CABUGAO'S LIABILITY:

Every criminal conviction requires of the prosecution to prove two things the fact of the crime, i.e.,
the presence of all the elements of the crime for which the accused stands charged, and the fact that
the accused is the perpetrator of the crime. Based on the above disquisitions, however, the
prosecution failed to prove these two things. The Court is not convinced with moral certainty that Dr.
Cabugao isguilty of reckless imprudence as the elements thereof were not proven by the
prosecution beyond a reasonable doubt.
Both the trial court and the appellate court bewail the failure to perform appendectomy on JR, or the
failure to determine the source of infection which caused the deterioration of JR's condition.
However, a review of the records fail to show that Dr. Cabugao is in any position to perform the
required appendectomy.
Immediately apparent from a review of the records of this case is the fact that Dr. Cabugao is not a
surgeon,but a general practitioner specializing in family medicine; thus, even if he wanted to, he
cannot do an operation, much less an appendectomy on JR. It is precisely for this reason why he
referred JR to Dr. Ynzon after he suspected appendicitis. Dr. Mateo, the prosecutions expert
witness, emphasized the role of the surgeon during direct examination, to wit:
27

ATTY. MARTEJA:
Q. You had mentioned that under this circumstances and condition, you have mentioned that surgery
is the solution, would you have allowed then a 24 hour observation?
A. If there is a lingering doubt, inshort period of observation of 18-24 hours can be allowed provided
that there would be close monitoring of the patient, sir.
Q. Would you please tell us who would be doing the monitoring doctor?
A. The best person should be the first examiner, the best surgeon, sir.
Q. So that would you say that it is incumbent on the surgeon attending to the case to have been the
one to observe within the period of observation?

A. Yes, because he will be in the best position to observe the sudden changes in the condition of the
patient, sir.
Q. And how often would in your experience doctor, how often would the surgeon re-assist (sic) the
condition of the patient during the period of observation?
A. Most foreign authors would recommend every four (4) hours, some centers will recommend
hourly or every two hours but here in the Philippines, would recommend for 4 to 6 hours, sir.
28

Dr. Cabugaos supervision does not cease upon his endorsement of his patient to the surgeon. Here,
Dr. Cabugao has shown to have exerted all efforts to monitor his patient and under these
circumstances he did not have any cause to doubt Dr. Ynzons competence and diligence. Expert
testimonies have been offered to prove the circumstances surrounding the case of JR and the need
to perform an operation. Defense witness, Dr. Villaflor, on cross examination testified, to wit:
Q. Isn't it a fact that torule out acute appendicitis as notthe disease of JR, surgery or operation
mustbe done, isn't it Doctor?
A. You have to [correlate] all the findings.
Q. Is it yes or no, Doctor?
A. Yes.
Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation,
that is right Doctor?
A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis, you have to operate.

29

xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain,
considering that JR likewise was feverish and that he was vomitting, does that not show a disease of
acute appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the impression then Doctor what you have earlier
mentioned that the only way to rule out the suspect which is acute appendicitis is by surgery, you
have said that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.

30

Neither do we find evidence that Dr. Cabugao has been negligent or lacked the necessary
precaution in his performance of his duty as a family doctor. On the contrary, a perusal ofthe medical
records would show that during the 24-hour monitoring on JR, it was Dr. Cabugao who frequently
made orders on the administration of antibiotics and pain relievers. There was also repetitive
instructions from Dr. Cabugao to refer JR to Dr. Ynzon as it appeared that he is suspecting

appendicitis. The referral of JR to Dr. Ynzon, a surgeon, is actually an exercise of precaution as he

knew that appendicitis is not within his scope of expertise. This clearly showed that he employed the
best of his knowledge and skill in attending to JR's condition, even after the referral of JR to Dr.
Ynzon. To be sure, the calculated assessment of Dr. Cabugao to refer JRto a surgeon who has
sufficient training and experience to handle JRs case belies the finding that he displayed
inexcusable lack of precaution in handling his patient.
31

We likewise note that Dr. Cabugao was out of town when JR's condition began to deteriorate. Even
so, before he left, he made endorsement and notified the resident-doctor and nurses-on-duty that he
will be on leave.
Moreover, while both appeared to be the attending physicians of JR during his hospital confinement,
it cannot be said that the finding of guilt on Dr. Ynzon necessitates the same finding on the coaccused Dr. Cabugao. Conspiracy is inconsistent with the idea of a felony committed by means of
culpa. Thus, the accused-doctors to be found guilty of reckless imprudence resulting in homicide, it
must be shown that both accused-doctors demonstratedan act executed without malice or criminal
intent but with lack of foresight, carelessness, or negligence. Noteworthy, the evidence on record
clearly points to the reckless imprudence of Dr. Ynzon; however, the same cannot be said in Dr.
Cabugao's case.
32

AS TO CIVIL LIABILITY
While this case is pending appeal, counsel for petitioner Dr. Ynzon informed the Court that the latter
died on December 23, 2011 due to "multiorgan failure" as evidenced by a copy of death
certificate. Thus, the effect of death, pending appeal of his conviction of petitioner Dr. Ynzon with
regard to his criminal and pecuniary liabilities should be in accordance to People v.
Bayotas, wherein the Court laid down the rules in case the accused dies prior to final judgment:
33

34

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as
well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard,
"the death of the accused prior to final judgment terminates his criminal liability and only the
civil liability directly arising from and based solely on the offense committed, i.e.,civil liability
ex delictoin senso strictiore."
2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the
same may also be predicated on a source of obligation other than delict. Article 1157 of the
Civil Code enumerates these other sources of obligation fromwhich the civil liability may
arise as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) x x x x x x x x x
e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery
therefor may be pursued but only by way of filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate
civil action may be enforced either againstthe executor/administrator or the estate of the
accused, depending on the source of obligation upon which the same is based as explained
above.
4. Finally, the private offended party need not fear a forfeiture of his right to file this separate
civil action by prescription, in cases where during the prosecution of the criminal action and
prior to its extinction, the private-offended party instituted together therewith the civil action.
In such case, the statute of limitationson the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with provisions of Article 1155 of the Civil Code,
that should thereby avoid any apprehension on a possible privation of right by prescription.
35

In view of the foregoing, it is clear that the death of the accused Dr. Ynzon pending appeal of his
conviction extinguishes his criminal liability. However, the recovery of civil liability subsists as the
same is not based on delictbut by contract and the reckless imprudence he was guilty of under
Article 365 of the Revised Penal Code. For this reason, a separate civil action may be enforced
either against the executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based, and in accordance with Section 4, Rule 111 of the Rules
on Criminal Procedure, we quote:
1wphi1

36

Sec. 4. Effect of death on civil actions. The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the
independent civil action instituted under section 3 of this Rule or which thereafter is instituted to
enforce liability arising from other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the case may be.
The heirs of the accused may besubstituted for the deceased without requiring the appointment of
an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner especially
provided in these rules for prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil
action the offended party may file against the estate of the deceased. (Emphases ours)
In sum, upon the extinction of the criminal liability and the offended party desires to recover
damages from the same act or omission complained of, the party may file a separate civil action
based on the other sources of obligation in accordance with Section 4, Rule 111. If the same act or
omission complained of arises from quasi-delict,as in this case, a separate civil action must be filed
against the executor or administrator of the estate of the accused, pursuant to Section 1, Rule 87 of
the Rules of Court:
37

38

Section 1. Actions which may and which may not be brought against executor or administrator. No
action upon a claim for the recovery of money or debtor interest thereon shall be commenced
against the executor or administrator; but to recover real or personal property, or an interest therein,

from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person
or property, real or personal, may be commenced against him. (Emphases ours)
Conversely, if the offended party desires to recover damages from the same act or omission
complained of arising from contract, the filing of a separate civil action must be filed against the
estate, pursuant to Section 5, Rule 86 of the Rules of Court, to wit:
Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. All claims
for money against the decent, arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense for the last sickness of the
decedent, and judgment for money against the decent, must be filed within the time limited in the
notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any
action that the executor or administrator may bring against the claimants. Where an executor or
administrator commencesan action, or prosecutes an action already commenced by the deceased in
his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and mutual claims may be set off
against each other in such action; and if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance against the estate, as though the claim
had been presented directly beforethe court in the administration proceedings. Claims not yet due,
or contingent, may be approved at their present value.
As a final note, we reiterate thatthe policy against double recovery requires that only one action be
maintained for the same act or omission whether the action is brought against the executor or
administrator, or the estate. The heirs of JR must choose which of the available causes of action for
damages they will bring.
39

WHEREFORE, premises considered, petitioner DR. ANTONIO P. CABUGAO is hereby

ACQUITTEDof the crime of reckless imprudence resulting to homicide.
Due to the death of accused Dr. Clenio Ynzon prior to the disposition of this case, his criminal liability
is extinguished; however, his civil liability subsists. A separate civil action may be filed either against
the executor/administrator, or the estateof Dr. Ynzon, depending on the source of obligation upon
which the same are based.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14160

June 30, 1960

PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
ANUNCIACION VDA. DE GOLEZ, defendant-appellee.
Assistant Solicitor General Antonio A. Torres and Solicitor Jorge R. Coquia for appellant.
Aniceto V. Zezobrado for appellee.
REYES, J. B. L., J.:
On October 2, 1957, the provincial fiscal of Negros Occidental filed an information in the Court of
First Instance of that province charging Anunciacion Vda. de Golez with the crime of homicide
through reckless imprudence, as follows:
That on or about the period comprised from December 12, 1956 to December 24, 1956, in
the municipality of San Carlos, province of Negros Occidental, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused, without being duly licensed to
practice medicine and with reckless negligence and without taking due precaution, did, then
and there, wilfully, unlawfully, and feloniosly diagnose, prescribe, and treat one Susana Tam,
who had been suffering for sometime with bodily ailment, knowing fully well that she is
incompetent and not possessing the necessary technical or scientific knowledge or skill, and
as a consequence of such negligence and carelessness and lack of medical skill, said
Susana Tam died thereafter.
The accused pleaded not guilty to the information.
When the case was called for trial, the assistant fiscal made a manifestation that the accused had
also been charged with the crime of illegal practice of medicine before another sala of the same
court. In view of this manifestation, the trial court motu proprio dismissed the information for being
fatally defective, without prejudice to the filing of the proper information against the same accused.
The grounds given for the dismissal were the following:
In view of the foregoing manifestation of the Fiscal, the Court finds that the information is
fatally defective and, therefore, should be dismissed under Par. (a), Sec. 2 of Rule 113 of the
Rules of Court inasmuch as the facts charged do not constitute the offense of homicide thru
reckless imprudence because illegal practice of medicine is malicious per se, and when the
accused practiced medicine without academical preparation and without a license to do so,
then she is per se committing a criminal act for which the criminal intent is presumed.
Although the crime of homicide thru reckless imprudence can be committed by a duly
licensed physician when in the practice of his profession he fails to exercise due care and
diligence from which the criminal act arises, this crime cannot be imputed to a person who
has no authority to practice this profession, which act is malicious per se. The crime
described in Article 365 of the Revised Penal Code results from the performance of a lawful
act which was done without exercising the care and diligence that is required by the
circumstances, and not from the performance of an unlawful act which is the subject of the
information in this case because a quack doctor who practices medicine does so against the
law, and, therefore, his act is necessarily malicious and criminal.

From the above order, the provincial fiscal appealed to this Court, and, through the Solicitor General,
urges that the court below erred in dismissing the information for being fatally defective because the
facts charged therein allegedly do not constitute the crime of homicide thru reckless imprudence.
We agree with appellant that the order of dismissal is erroneous, in that the crime of illegal practice
of medicine is a statutory offense wherein criminal intent is taken for granted, so that a person may
be convicted thereof irrespective of his intention and in spite of his having acted in good faith and
without malice; i.e., even if he was not motivated by an evil desire to injure or hurt another, but by an
honest desire to cure or alleviate the pain of a patient. In fact, as defined by Section 2678 of the
Revised Administrative Code (the law then in force), the offense consists in the mere act of
practicing medicine in violation of the Medical Law, even if no injury to another, much less death,
results from such malpractice. When, therefore, the patient dies, the illegal practitioner should be
equally responsible for the death of his patient, an offense independent of and distinct from the
illegal practice of medicine.
The allegations in the information in this case that the accused acted with reckless negligence in
diagnosing, prescribing for, and treating the deceased Susana Tam, knowing that she did not
possess the necessary technical knowledge or skill to do so, thus causing her death, sufficiently
charge the crime of homicide through reckless imprudence, since ordinary diligence counsels one
not to tamper with human life by trying to treat a sick man when he knows that he does not have the
special skill, knowledge, and competence to attempt such treatment and cure, and may
consequently reasonably foresee harm or injury to the latter, said accused was found guilty and
convicted by this Court of physical injuries through imprudence under the old Penal Code (U. S.vs.
Feliciano Divino, 12 Phil., 175).
However, in view of the error of the lower court in dismissing the information, we cannot sustain this
appeal for the reason that it would place the accused in double jeopardy. The present information
being valid and sufficient in form and substance to sustain a conviction, the dismissal thereof by the
court after the accused had pleaded not guilty to the charge and without his consent constitutes
jeopardy as to bar further proceedings upon the case (U. S vs. Yam Tung Way, 21 Phil., 67;
People vs. Hernandez, 94 Phil., 49; 49 Off. Gaz. No. 12, 5342; People vs. Ferrer, 100 Phil., 124; 55
Off. Gaz. [4] 620). The failure of the accused to file a brief and raise the question of double jeopardy
in this appeal does not mean that section 2, Rule 118, providing that the People can not appeal if the
defendant would be placed in double jeopardy would no longer apply (People vs. Bao, 106 Phil.,
243; 56 Off. Gaz. [51] 7768).
The unfortunate result in this case could have been avoided if the trial court had proceeded more
deliberately, without allowing its judgment to be influenced by preconceived notions or undue haste
in dispatching cases.
The appeal is, therefore, dismissed, with costs de oficio.
Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Barrera, and
Gutierrez David, JJ., concur.

THIRD DIVISION
[G.R. No. 122445. November 18, 1997]

DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and

LYDIA UMALI, respondents.
DECISION
FRANCISCO, J.:

"Doctors are protected by a special law. They are not guarantors of care. They do not
even warrant a good result. They are not insurers against mishap or unusual
consequences. Furthermore they are not liable for honest mistake of judgment"
[1]

The present case against petitioner is in the nature of a medical

malpractice suit, which in simplest term is the type of claim which a victim has
available to him or her to redress a wrong committed by a medical
professional which has cause bodily harm. In this jurisdiction, however, such
claims are most often brought as a civil action for damages under Article 2176
of the Civil Code, and in some instances, as a criminal case under Article 365
of the Revised Penal Code with which the civil action for damages is
impliedly instituted. It is via the latter type of action that the heirs of the
deceased sought redress for the petitioner's alleged imprudence and
negligence in treating the deceased thereby causing her death. The petitioner
and one Dr. Lina Ercillo who was the attending anaesthesiologist during the
operation of the deceased were charged with "reckless imprudence and
negligence resulting to (sic) homicide" in an information which reads:
[2]

[3]

[4]

"That on or about March 23, 1991, in the City of San Pablo, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the accused
abovenamed, being then the attending anaesthesiologist and surgeon, respectively, did
then and there, in a negligence (sic), careless, imprudent, and incompetent manner,
and failing to supply or store sufficient provisions and facilities necessary to meet any
and all exigencies apt to arise before, during and/or after a surgical operation causing
by such negligence, carelessness, imprudence, and incompetence, and causing by such
failure, including the lack of preparation and foresight needed to avert a tragedy, the
untimely death of said Lydia Umali on the day following said surgical operation."
[5]

Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty
to the above-mentioned charge. On March 4, 1994, the Municipal Trial Court
in Cities (MTCC) of San Pablo City rendered a decision, the dispositive
portion of which is hereunder quoted as follows:
"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the offense
charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is
hereby held responsible for the death of Lydia Umali on March 24, 1991, and
therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby
sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor
with costs."
[6]

The petitioner appealed her conviction to the Regional Trial Court (RTC) which
affirmed in toto the decision of the MTCC prompting the petitioner to file a
petition for review with the Court of Appeals but to no avail. Hence this petition
for review on certiorari assailing the decision promulgated by the Court of
Appeals on October 24, 1995 affirming petitioner's conviction with modification
that she is further directed to pay the heirs of Lydia Umali P50,000.00 as
indemnity for her death.
[7]

[8]

In substance, the petition brought before this Court raises the issue of
whether or not petitioner's conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged medical malpractice, is
supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo,
accompanied her mother to the Perpetual Help Clinic and General Hospital
situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said
hospital at around 4:30 in the afternoon of the same day. Prior to March 22,
1991, Lydia was examined by the petitioner who found a "myoma" in her
uterus, and scheduled her for a hysterectomy operation on March 23, 1991.
Rowena and her mother slept in the clinic on the evening of March 22, 1991
as the latter was to be operated on the next day at 1:00 o'clock in the
afternoon. According to Rowena, she noticed that the clinic was untidy and
the window and the floor were very dusty prompting her to ask the attendant
for a rag to wipe the window and the floor with. Because of the untidy state of
the clinic, Rowena tried to persuade her mother not to proceed with the
[9]

[10]

[11]

[12]

[13]

operation. The following day, before her mother was wheeled into the
operating room, Rowena asked the petitioner if the operation could be
postponed. The petitioner called Lydia into her office and the two had a
conversation. Lydia then informed Rowena that the petitioner told her that she
must be operated on as scheduled.
[14]

[15]

Rowena and her other relatives, namely her husband, her sister and two
aunts waited outside the operating room while Lydia underwent operation.
While they were waiting, Dr. Ercillo went out of the operating room and
instructed them to buy tagamet ampules which Rowena's sister immediately
bought. About one hour had passed when Dr. Ercillo came out again this time
to ask them to buy blood for Lydia. They bought type "A" blood from the St.
Gerald Blood Bank and the same was brought by the attendant into the
operating room. After the lapse of a few hours, the petitioner informed them
that the operation was finished. The operating staff then went inside the
petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was
brought out of the operating room in a stretcher and the petitioner asked
Rowena and the other relatives to buy additional blood for Lydia.
Unfortunately, they were not able to comply with petitioner's order as there
was no more type "A" blood available in the blood bank. Thereafter, a person
arrived to donate blood which was later transfused to Lydia. Rowena then
noticed her mother, who was attached to an oxygen tank, gasping for breath.
Apparently the oxygen supply had run out and Rowena's husband together
with the driver of the accused had to go to the San Pablo District Hospital to
get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived.
But at around 10:00 o'clock P.M. she went into shock and her blood
pressure dropped to 60/50. Lydia's unstable condition necessitated her
transfer to the San Pablo District Hospital so she could be connected to a
respirator and further examined. The transfer to the San Pablo City District
Hospital was without the prior consent of Rowena nor of the other relatives
present who found out about the intended transfer only when an ambulance
arrived to take Lydia to the San Pablo District Hospital. Rowena and her other
relatives then boarded a tricycle and followed the ambulance.
[16]

[17]

[18]

Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled
into the operating room and the petitioner and Dr. Ercillo re-operated on her
because there was blood oozing from the abdominal incision. The attending
physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and
Gynecology Department of the San Pablo District Hospital. However, when Dr.
[19]

Angeles arrived, Lydia was already in shock and possibly dead as her blood
pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo
that there was nothing he could do to help save the patient. While petitioner
was closing the abdominal wall, the patient died. Thus, on March 24, 1991,
at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death
certificate states "shock" as the immediate cause of death and "Disseminated
Intravascular Coagulation (DIC)" as the antecedent cause.
[20]

[21]

[22]

In convicting the petitioner, the MTCC found the following circumstances

as sufficient basis to conclude that she was indeed negligent in the
performance of the operation:
"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to
prepare for any contingency that might happen during the operation. The manner and
the fact that the patient was brought to the San Pablo District Hospital for reoperation
indicates that there was something wrong in the manner in which Dra. Cruz conducted
the operation. There was no showing that before the operation, accused Dr. Cruz had
conducted a cardio pulmonary clearance or any typing of the blood of the patient. It
was (sic) said in medical parlance that the "abdomen of the person is a temple of
surprises" because you do not know the whole thing the moment it was open (sic) and
surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is
a public document was not presented because it is only there that we could determine
the condition of the patient before the surgery. The court also noticed in Exh. "F-1"
that the sister of the deceased wished to postpone the operation but the patient was
prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia
Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch
Cruz because of loss of blood during the operation of the deceased for evident
unpreparedness and for lack of skill, the reason why the patient was brought for
operation at the San Pablo City District Hospital. As such, the surgeon should answer
for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is
no evidence to indicate that she should be held jointly liable with Dra. Cruz who
actually did the operation."
[23]

The RTC reiterated the abovementioned findings of the MTCC and upheld
the latter's declaration of "incompetency, negligence and lack of foresight and
skill of appellant (herein petitioner) in handling the subject patient before and
after the operation." And likewise affirming the petitioner's conviction, the
Court of Appeals echoed similar observations, thus:
[24]

"x x x. While we may grant that the untidiness and filthiness of the clinic may not by
itself indicate negligence, it nevertheless shows the absence of due care and
supervision over her subordinate employees. Did this unsanitary condition permeate
the operating room? Were the surgical instruments properly sterilized? Could the
conditions in the OR have contributed to the infection of the patient? Only the
petitioner could answer these, but she opted not to testify. This could only give rise to
the presumption that she has nothing good to testify on her defense. Anyway, the
alleged "unverified statement of the prosecution witness" remains unchallenged and
unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts: that
the accused asked the patient's relatives to buy Tagamet capsules while the operation
was already in progress; that after an hour, they were also asked to buy type "A" blood
for the patient; that after the surgery, they were again asked to procure more type "A"
blood, but such was not anymore available from the source; that the oxygen given to
the patient was empty; and that the son-in-law of the patient, together with a driver of
the petitioner, had to rush to the San Pablo City District Hospital to get the muchneeded oxygen. All these conclusively show that the petitioner had not prepared for
any unforeseen circumstances before going into the first surgery, which was not
emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics,
no prepared blood, properly typed and cross-matched, and no sufficient oxygen
supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given any
cardio-pulmonary clearance, or at least a clearance by an internist, which are standard
requirements before a patient is subjected to surgery. Did the petitioner determine as
part of the pre-operative evaluation, the bleeding parameters of the patient, such as
bleeding time and clotting time? There is no showing that these were done. The
petitioner just appears to have been in a hurry to perform the operation, even as the
family wanted the postponement to April 6, 1991. Obviously, she did not prepare the
patient; neither did she get the family's consent to the operation. Moreover, she did not
prepare a medical chart with instructions for the patient's care. If she did all these,
proof thereof should have been offered. But there is none. Indeed, these are
overwhelming evidence of recklessness and imprudence."
[25]

This court, however, holds differently and finds the foregoing

circumstances insufficient to sustain a judgment of conviction against the
petitioner for the crime of reckless imprudence resulting in homicide. The
elements of reckless 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 reckless
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 a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined according to the
standard of care observed by other members of the profession in good
standing under similar circumstances bearing in mind the advanced state of
the profession at the time of treatment or the present state of medical science.
In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al.,
this Court stated that in accepting a case, a doctor in effect represents that,
having the needed training and skill possessed by physicians and surgeons
practicing in the same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at least the same
level of care that any other reasonably competent doctor would use to treat a
condition under the same circumstances. It is in this aspect of medical
malpractice that expert testimony is essential to establish not only the
standard of care of the profession but also that the physician's conduct in the
treatment and care falls below such standard. Further, inasmuch as the
causes of the injuries involved in malpractice actions are determinable only in
the light of scientific knowledge, it has been recognized that expert testimony
is usually necessary to support the conclusion as to causation.
[26]

[27]

[28]

[29]

Immediately apparent from a review of the records of this case is the

absence of any expert testimony on the matter of the standard of care
employed by other physicians of good standing in the conduct of similar
operations. The prosecution's expert witnesses in the persons of Dr. Floresto
Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation
(NBI) only testified as to the possible cause of death but did not venture to
illuminate the court on the matter of the standard of care that petitioner should
have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic
and its untidiness; the lack of provisions such as blood, oxygen, and certain
medicines; the failure to subject the patient to a cardio-pulmonary test prior to
the operation; the omission of any form of blood typing before transfusion; and

even the subsequent transfer of Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner. But while it may be true that
the circumstances pointed out by the courts below seemed beyond cavil to
constitute reckless imprudence on the part of the surgeon, this conclusion is
still best arrived at not through the educated surmises nor conjectures of
laymen, including judges, but by the unquestionable knowledge of expert
witnesses. For whether a physician or surgeon has exercised the requisite
degree of skill and care in the treatment of his patient is, in the generality of
cases, a matter of expert opinion. The deference of courts to the expert
opinion of qualified physicians stems from its realization that the latter
possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating. Expert testimony should have been
offered to prove that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of care employed by other
physicians in good standing when performing the same operation. It must be
remembered that when the qualifications of a physician are admitted, as in the
instant case, there is an inevitable presumption that in proper cases he takes
the necessary precaution and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently established. This
presumption is rebuttable by expert opinion which is so sadly lacking in the
case at bench.
[30]

[31]

[32]

Even granting arguendo that the inadequacy of the facilities and untidiness
of the clinic; the lack of provisions; the failure to conduct pre-operation tests
on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital
and the reoperation performed on her by the petitioner do indicate, even
without expert testimony, that petitioner was recklessly imprudent in the
exercise of her duties as a surgeon, no cogent proof exists that any of these
circumstances caused petitioner's death. Thus, the absence of the fourth
element of reckless imprudence: that the injury to the person or property was
a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the part of the
surgeon as well as a casual connection of such breach and the resulting
death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the
attending physician was absolved of liability for the death of the complainant's
wife and newborn baby, this court held that:
[33]

[34]

"In order that there may be a recovery for an injury, however, it must be shown that
the 'injury for which recovery is sought must be the legitimate consequence of the
wrong done; the connection between the negligence and the injury must be a direct
and natural sequence of events, unbroken by intervening efficient causes.' In other
words, the negligence must be the proximate cause of the injury. For, 'negligence, no
matter in what it consists, cannot create a right of action unless it is the proximate
cause of the injury complained of.' And 'the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have
occurred.''' (Underscoring supplied.)
[35]

Dr. Arizala who conducted an autopsy on the body of the deceased

summarized his findings as follows:
"Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b".
There appears here a signature above the typewritten name Floresto Arizala, Jr.,
whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and everything after the
post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm.,
infraumbilical area, anterior abdominal area, midline, will you please explain that in
your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read: Uterus, pearshaped and pale measuring 7.5 x 5.5 x 5.0 cm, with some surface nodulation of
the fundic area posteriorly. Cut-section shows diffusely pale myometrium with
areas of streak induration. The ovaries and adnexal structures are missing with the
raw surfaces patched with clotted blood. Surgical sutures were noted on the
operative site.
Intestines and mesenteries are pale with blood clots noted between the
mesentric folds.
Hemoperitonium: 300 s.s.,

right paracolic gutter,

50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your own language or in ordinary
A. There was a uterus which was not attached to the adnexal structures namely
ovaries which were not present and also sign of previous surgical operation and
there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood clots noted
between the mesenteric folds, will you please explain on (sic) this?
A. In the peritoneal cavity, they are mostly perritonial blood.
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a
result of the injuries which destroyed the integrity of the vessel allowing blood to
sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the
court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic
shock.

Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir.[36] (Underscoring supplied.)

The foregoing was corroborated by Dr. Nieto Salvador:

"Q. And were you able to determine the cause of death by virtue of the examination of
the specimen submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be difficult for me to determine
the cause of death, sir.
Q. Have you examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of nonreplacement of blood and so the victim before she died there was shock of
diminish of blood of the circulation. She died most probably before the actual
complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic) operation?
A. Based on my pathology findings, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel
may be cut while on operation and this cause (sic) bleeding, or may be set in the
course of the operation, or may be (sic) he died after the operation. Of course
there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?

A. Yes, sir."[37] (Underscoring supplied.)

The testimonies of both doctors establish hemorrhage or hemorrhagic

shock as the cause of death. However, as likewise testified to by the expert
witnesses in open court, hemorrhage or hemorrhagic shock during surgery
may be caused by several different factors. Thus, Dr. Salvador's elaboration
on the matter:
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could
be at the moment of operation when one losses (sic) control of the presence, is
that correct? During the operation there is lost (sic) of control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting defect, is
that correct?
A. May be (sic)."[38] (Underscoring supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
"Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would
be the possible causes of such hemorrage (sic)?
A. Among those would be what we call Intravascular Coagulation and this is the reason
for the bleeding, sir, which cannot be prevented by anyone, it will happen to
anyone, anytime and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the operations done in
the body?
A. Not related to this one, the bleeding here is not related to any cutting or operation
that I (sic) have done.

Q. Aside from the DIC what could another causes (sic) that could be the cause for the
hemorrhage or bleeding in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible that the ligature in
the suture was (sic) become (sic) loose, it is (sic) becomes loose if proven.

xxxxxxxxx
Q. If the person who performed an autopsy does not find any untight (sic) clot (sic)
blood vessel or any suture that become (sic) loose the cause of the bleeding could
not be attributed to the fault of the subject?
A. Definitely, sir."[39] (Underscoring supplied.)

According to both doctors, the possible causes of hemorrhage during an

operation are: (1) the failure of the surgeon to tie or suture a cut blood vessel;
(2) allowing a cut blood vessel to get out of control; (3) the subsequent
loosening of the tie or suture applied to a cut blood vessel; and (4) and a
clotting defect known as DIC. It is significant to state at this juncture that the
autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any
untied or unsutured cut blood vessel nor was there any indication that the tie
or suture of a cut blood vessel had become loose thereby causing the
hemorrhage. Hence the following pertinent portion of Dr. Arizala's testimony:
[40]

"Q: Doctor, in examining these structures did you know whether these were sutured
ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were tied by first
suturing it and then tying a knot or the tie was merely placed around the cut
structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to
examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut structures were
not sutured or tied neither were you able to determine whether any loose suture
was found in the peritoneal cavity?

A: I could not recall any loose sutured (sic), sir."[41]

On the other hand, the findings of all three doctors do not preclude the
probability that DIC caused the hemorrhage and consequently, Lydia's death.
DIC which is a clotting defect creates a serious bleeding tendency and when
massive DIC occurs as a complication of surgery leaving raw surface, major
hemorrhage occurs. And as testified to by defense witness, Dr. Bu C. Castro,
hemorrhage due to DIC "cannot be prevented, it will happen to anyone,
anytime." He testified further:
[42]

[43]

"Q. Now, under the circumstance one of the possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that it cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this patient
suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali
looking for the chart, the operated (sic) records, the post mortem findings on the
histophanic (sic) examination based on your examination of record, doctor, can
you more or less says (sic) what part are (sic) concerned could have been the
caused (sic) of death of this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death is
dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor would say
whether the doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just read the chart as
well as the other record.

ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir."

[44]

This court has no recourse but to rely on the expert testimonies rendered
by both prosecution and defense witnesses that substantiate rather than
contradict petitioner's allegation that the cause of Lydia's death was DIC
which, as attested to by an expert witness, cannot be attributed to the
petitioner's fault or negligence. The probability that Lydia's death was caused
by DIC was unrebutted during trial and has engendered in the mind of this
Court a reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the
crime of reckless imprudence resulting in homicide. While we condole with the
family of Lydia Umali, our hands are bound by the dictates of justice and fair
dealing which hold inviolable the right of an accused to be presumed innocent
until proven guilty beyond reasonable doubt. Nevertheless, this Court finds the
petitioner civilly liable for the death of Lydia Umali, for while a conviction of a
crime requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability.
[45]

The petitioner is a doctor in whose hands a patient puts his life and limb.
For insufficiency of evidence this Court was not able to render a sentence of
conviction but it is not blind to the reckless and imprudent manner in which the
petitioner carried out her duties. A precious life has been lost and the
circumstances leading thereto exacerbated the grief of those left behind. The
heirs of the deceased continue to feel the loss of their mother up to the
present time and this Court is aware that no amount of compassion and
commiseration nor words of bereavement can suffice to assuage the sorrow
[46]

felt for the loss of a loved one. Certainly, the award of moral and exemplary
damages in favor of the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is
hereby ACQUITTED of the crime of reckless imprudence resulting in homicide
but is ordered to pay the heirs of the deceased Lydia Umali the amount of
FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED
THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY
THOUSAND PESOS (P50,000.00) as exemplary damages.
Let the copy of this decision be furnished to the Professional Regulation
Commission (PRC) for appropriate action.
SO ORDERED.

FIRST DIVISION
ELSIE ANG, G.R. No. 166239
Petitioner,
Present:
PANGANIBAN, C.J., Chairperson
YNARES-SANTIAGO,*
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR. and
CHICO-NAZARIO, JJ.
Promulgated:
DR. ERNIEFEL GRAGEDA,
Respondent. June 8, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Review of the Resolution [1] of the Court of
Appeals in (CA) CA-G.R. SP No. 76339 dismissing the petition for certiorari filed
by petitioner, and its resolution denying the motion for reconsideration thereof.
The Antecedents
On February 9, 1996, Janet Ang had liposuction surgery on her thighs at the EPG
Cosmetic and Aesthetics Surgery Clinic in Alabang, Muntinlupa City. She was
attended to and operated on by Dr. Erniefel Grageda, who owned and ran the said
clinic. In the course of the operation, Janet began to have fits of seizure. The doctor
tried to stop the seizures but Janet had a grandmal seizure that led to her
death. Medico-legal experts of the National Bureau of Investigation listed the
cause of death as irreversible shock.

Ang Ho Chem, Janets father, filed a criminal complaint against

respondent. On June 10, 1996, the Office of the City Prosecutor of Muntinlupa
filed an Information[2] against Grageda for reckless imprudence resulting to
homicide before the Metropolitan Trial Court (MeTC) of Muntinlupa City. The
accusatory portion of the Information reads:
That on or about the 4th (sic) day of February, 1996,[3] in the City of
Muntinlupa, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then a doctor of EPG Cosmetics
and Aesthetics Surgical Clinic, without taking the necessary care and
precaution to avoid injury to person, did then and there, unlawfully and
feloniously conducted a liposuction operation on the person of Janet Ang
in a careless, negligent and imprudent manner without employing the
necessary corrective and/or preventive measures to prevent and/or arrest
the irreversible shock, which directly caused her death.

The case was raffled to Branch 80 of the MeTC of Muntinlupa and docketed as
Criminal Case No. 21815.
After trial on the merits, the MeTC rendered judgment on March 4, 2002,
acquitting accused Grageda.[4] The lower court ruled that the accused complied
with the minimum standards followed by physicians in the treatment of their
patients; that liposuction of the thighs is a minor surgery, hence, the clinical setting
of accused was acceptable; that in trying to save the life of Janet Ang, accused
followed the standard procedure in the conduct of the same; that all the elements of
the crime of reckless imprudence are not present in the case; that accused was not
negligent; and that the liposuction surgery was not the proximate cause of the death
of Janet Ang. The dispositive part of the decision states:
WHEREFORE, premises considered, the Court finds accused Dr.
Erniefel Grageda NOT GUILTY of the crime of reckless imprudence
resulting to homicide.
SO ORDERED.

Private complainant appealed the decision on the civil aspect thereof to the
Regional Trial Court (RTC), Branch 276, Muntinlupa City. The case was docketed
as Criminal Case No. 02-397.[5]
On April 30, 2002, the RTC directed the private complainant (now appellant) to
file the necessary appeal memorandum/brief within 15 days from notice.
[6]
Appellant received his copy of the order on May 8, 2002.
However, appellant, through counsel, the Solis & Medina Law Offices, failed to
file the required memorandum within the specified period. Appellant filed no less
than 15 motions for extension of time to file said memorandum dated as follows:
May 22, 2002,[7] June 5, 2002,[8] June 21, 2002,[9] July 4, 2002,[10] July 18, 2002,
[11]
August 2, 2002,[12] August 16, 2002,[13] August 27, 2002,[14] September 6, 2002,
[15]
September 16, 2002,[16] October 1, 2002,[17] October 16, 2002,[18] October 30,
2002,[19]November 15, 2002,[20] and November 28, 2002.[21] In his last motion,
appellant prayed that he be given up to December 15, 2002 within which to finalize
and file his appeal memorandum.
On December 2, 2002, the RTC issued an Order [22] dismissing the appeal for
failure of appellant to file his appeal memorandum.
Still unaware that the appeal had been dismissed by the court, accused-appellee
filed a Motion to Dismiss the Appeal [23] on December 10, 2002, on the ground of
appellants failure to comply with the order of the court. On December 16, 2002,
appellant received a copy of the December 2, 2002 Order of the RTC dismissing
his appeal, and finally filed his appeal memorandum/brief[24] by registered mail as
well as a motion for reconsideration[25] of the December 2, 2002 RTC Order.
On January 20, 2003, the RTC issued an Order[26] denying appellants motion for
reconsideration. The court ratiocinated that:
Considering that at the time the Order dismissing the appeal was issued,
appellant still had not yet filed the appeal memorandum/brief, despite
being granted several extension[s] of time to so file, to a total of 155
days. In fact, the memorandum was filed only on the same date the

Motion for Reconsideration was filed. The Court did not find sufficient
reason to reconsider her Order and hereby DENIES the same.

On March 4, 2003, counsel for appellant filed a Manifestation [27] informing the
RTC of the appellants death and named the latters daughter, Elsie Ang, as his
substitute and representative in accordance with Section 16, Rule 3 of the Revised
Rules of Court.
Instead of appealing the December 2, 2002 Order of the RTC via a petition for
review under Rule 42 of the Rules of Court within the period therefor, Elsie Ang
(petitioner) filed a Petition for Certiorari[28] on April 4, 2003 before the CA,
questioning the December 2, 2002 and January 20, 2003 Orders of the
RTC. Petitioner raised the following arguments in support of her petition:
1. RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION
WHEN IT ISSUED THE ASSAILED ORDERS DISMISSING THE
APPEAL AND DENYING THE MOTION FOR RECONSIDERATION
DESPITE THE FACT THAT THE APPEAL MEMORANDUM/BRIEF
WAS SEASONABLY FILED AND THE EXTENSIONS WERE
NECESSARY AND JUSTIFIED IN VIEW OF THE IMPORTANCE OF
THE APPEAL;
2. RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION IN
DISREGARDING APPELLANT-PETITIONERS STATUTORY RIGHT
TO APPEAL, AND THE NUMEROUS PRONOUNCEMENTS OF
THE SUPREME COURT ADMONISHING APPELLATE COURTS TO
REVIEW A DECISION ON THE MERITS RATHER THAN
ABORTING THE RIGHT TO APPEAL BY A LITERAL
APPLICATION OF PROCEDURAL RULES;
3. RESPONDENT COURT GRAVELY ERRED IN RELYING ON
TECHNICAL RULES WHICH IT OUGHT TO HAVE SET ASIDE ON
THE PRINCIPLE THAT WHERE THE RIGID APPLICATION OF
THE RULES WOULD FRUSTRATE SUBSTANTIAL JUSTICE OR
BAR THE VINDICATION OF A LEGITIMATE GRIEVANCE, THE
COURTS ARE JUSTIFIED IN EXEMPTING A PARTICULAR CASE
FROM THE OPERATION OF THE RULES; and,

4. IT WAS INDEED GRAVE ERROR FOR THE RESPONDENT

COURT TO DISMISS THE APPEAL AND DISALLOW THE FILING
OF THE APPEAL MEMORANDUM/BRIEF DESPITE ITS
APPARENT MERITS x x x[29]

On May 15, 2003, the CA issued a Resolution[30] dismissing the petition for being
the wrong remedy to question the RTC Orders. The CA reasoned that petitioner
should have filed a petition for review under Rule 42 of the Rules of Court within
the reglementary period, instead of a petition for certiorari which was filed beyond
the original 15-day period. The CA emphasized that certiorari cannot take the
place of a lost appeal.
Petitioner filed a motion for reconsideration [31] of the resolution, arguing that
there was no appeal from an order dismissing or disallowing an appeal, hence, the
proper remedy is a petition for certiorari. In his Comment[32] filed on July 9, 2003,
respondent argued that, under the Rules of Court, a party desiring to question a
decision of the RTC rendered in the exercise of its appellate jurisdiction should file
a petition for review under Rule 42 of the Rules of Court before the CA, and not
a certiorari petition under Rule 65.
In the Reply[33] filed on August 1, 2003, petitioner contended that the RTC gravely
abused its discretion; hence, certiorari was the proper remedy. Petitioner, likewise,
invoked liberality in the application of the Rules of Court. Respondent, in
the August 11, 2003 Rejoinder,[34] posited that the RTC did not abuse its discretion
and that certiorari cannot take the place of a lost appeal. In her SurRejoinder[35] filed on September 17, 2003, petitioner maintained that her appeal
memorandum/brief was, indeed, filed on December 16, 2002 within the extension
period sought, thus, petitioner did not fail in filing the same. She insisted that the
dismissal of her appeal was a nullity.
Finding no reversible error in its previous dismissal order, the CA, on December
10, 2004, denied petitioners motion for reconsideration.[36]
The Present Petition

On January 31, 2005, petitioner filed the instant petition for review on certiorari,
contending that:
I
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION
FOR CERTIORARI UNDER RULE 65 FILED BY HEREIN
PETITIONER FOR ALLEGEDLY BEING A WRONG REMEDY:
A. The Regional Trial Court acted with grave abuse of
discretion in dismissing the appeal even before the lapse of
the extended period within which to (sic) herein petitioners
Appeal Memorandum/Brief.
B. There was no appeal nor any plain, speedy, and adequate
remedy in the ordinary course of law.
II
ASSUMING FOR THE SAKE OF PURE ARGUMENT THAT THE
PETITION FOR CERTIORARI UNDER RULE 65 WAS NOT THE
PROPER LEGAL REMEDY, THE SUBSTANTIAL AND OBVIOUS
MERITS OF THE APPEAL AND THE IMPORTANCE OF THE
MATTERS AND/OR ISSUES DISCUSSED THEREIN WARRANT
THE ADJUDICATION OF THE SAID APPEAL ON THE MERITS:
A. The Trial Court totally disregarded the testimonies of
competent witnesses and medical experts including the
voluminous documentary exhibits presented by the
prosecution when it reproduced in toto the Memorandum of
the private respondent in issuing its decision in Criminal
Case No. 21815.
B. Liposuction of the thighs is not a minor, trivial or simple
procedure contrary to what Dr. Grageda portrays it to be.
Since liposuction of the thighs is not a minor surgical
procedure, the standards of care are more rigid. The
evidence showed that Grageda did not observe or did not
adhere to these standards.
C. Dr. Grageda is not even a surgeon who is qualified to
perform liposuction operation which is a form of plastic
surgery.

D. When the victim Janet Ang went into seizures, the

appellee Dr. Grageda did not observe the proper standards
of care in managing the said seizures; as shown by the
evidence, the efforts which Dr. Grageda exerted were
inadequate, manifesting the lack of foresight or due care
expected of a surgeon.
E. When the victim Janet Ang went into cardiac arrest, the
appellee Dr. Grageda did not observe the proper standards
of care in managing the cardiac arrest in accordance with
known treatises or medical authorities on the subject. Dr.
Gragedas clinic was ill-equipped both in terms of vital
medical equipment needed and of competent personnel
assistance; and
F. Dr. Grageda did not observe the appropriate standards for
pre-operative care; his pre-operative examination of the
victim lacked thoroughness, nay inadequate and
peremptorily administered.[37]

The issues raised by the parties in their pleadings are the following: (1) whether the
RTC erred in dismissing the appeal of petitioner; and (2) whether the filing of a
petition forcertiorari under Rule 65 of the Rules of Court was the proper remedy
of petitioner in the appellate court.
On the first issue, petitioner points out that she filed her appeal memorandum
within the extended period therefor; for this reason, the Order of the RTC
dismissing her appeal allegedly for failure to file the memorandum is null and
void, depriving her of her right to due process. Moreover, she had no appeal or any
plain, speedy, and adequate remedy in the ordinary course of law; hence, her
petition for a writ of certiorari under Rule 65 of the Rules of Court is appropriate.
Petitioner insists that the trial court did not issue any orders denying her several
motions for extension to file her appeal memorandum; neither did respondent
oppose her motions.Respondent did not suffer any injury by the tardy filing of her
appeal memorandum. It was thus unjust and arbitrary for the RTC to dismiss her
appeal.

Petitioner maintains that, in any event, she filed her appeal memorandum
within the period prayed for by her in her last motion for extension. Since the RTC
had already acquired jurisdiction over her appeal, it erred in dismissing her appeal
on its belief that she failed to file her appeal memorandum on time. Petitioner cites
the ruling of this Court in Development Bank of the Philippines v. Court of
Appeals[38] to buttress her contentions.
Petitioner posits that even assuming her petition for certiorari was not the proper
remedy, a relaxation of the rule is warranted, in view of the substantive issues
raised in her petition.
On the merits of her appeal in the RTC, petitioner assails the decision of the trial
court as anomalous and collusive with respondent because the trial court merely
reproduced the Memorandum of respondent in its decision. Liposuction of the
thighs is not a trivial or simple procedure, but is, at the very least, classified as a
minor surgery. As shown by the evidence on record, respondent did not observe the
proper standards of care when the victim suffered seizures. His efforts were
inadequate, manifesting lack of foresight or due care expected of a surgeon. Even
when the victim had cardiac arrest, respondent did not observe the proper standards
of care in managing the cardiac arrest in accordance with known treatises or
medical authorities. His clinic is ill-equipped both in terms of vital medical
equipment needed and competent personnel or assistant. Petitioner insists that the
trial court erred in failing to render judgment for damages and attorneys fees
against respondent.
By way of comment, respondent avers that the RTC did not commit any error when
it dismissed the appeal of petitioner for her failure to file her appeal memorandum
despite no less than fifteen (15) motions for extensions of 155 days to file the
same. In any event, the remedy of petitioner was to file a petition for review to the
CA under Rule 42 of the Rules of Court, not a petition for certiorari under Rule
65. By failing to file said petition for review within the period therefor, petitioner
lost her right to appeal. Respondent points out that a petition for certiorari cannot
be used as substitute for a lost appeal.

By way of reply, petitioner avers that as held by this Court in Sanchez v. Court of
Appeals,[39] certiorari may be entertained despite the existence of appeal in
accordance with the dictates of public welfare, the advancement of public policy,
and the broader interest of justice, or where the orders complained of are found to
be completely null and void.Petitioner posits that the Rules of Court should be
interpreted so as to give litigants ample opportunity to prove their respective
claims, and that a possible denial of substantial justice due to legal technicalities
should be avoided.
The Courts Ruling
The petition is not meritorious.
On the first issue, we declare that the December 2, 2002 Order of the RTC
dismissing petitioners appeal for her failure to file her memorandum despite her
successive motions for extension of time to do so was a final order. The remedy of
petitioner from said Order of the RTC, as well as the January 20, 2003 Order
denying her motion for reconsideration, was to appeal by filing a petition for
review in the CA under Rule 42 of the Rules of Court. It bears stressing that when
the RTC issued the aforementioned Order, it did so in the exercise of its appellate
jurisdiction. Thus, the remedy of petitioner was to appeal the order under Rule 42,
which reads:
Section 1. How appeal taken; time for filing. A party desiring to appeal
from a decision of the Regional Trial Court rendered in the exercise of
its appellate jurisdiction may file a verified petition for review with the
Court of Appeals, paying at the same time to the clerk of said court the
corresponding docket and other lawful fees, depositing the amount
of P500.00 for costs, and furnishing the Regional Trial Court and the
adverse party with a copy of the petition. The petition shall be filed and
served within fifteen (15) days from notice of the decision sought to be
reviewed or of the denial of petitioners motion for new trial or
reconsideration filed in due time after judgment. Upon proper motion
and the payment of the full amount of the docket and other lawful fees
and the deposit for costs before the expiration of the reglementary
period, the Court of Appeals may grant an additional period of fifteen
(15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in
no case to exceed fifteen (15) days.

This rule is based on Section 22 of Batas Pambansa Blg. 129 which explicitly
states:
SEC. 22. Appellate Jurisdiction. Regional Trial Courts shall exercise
appellate jurisdiction over all cases decided by Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in
their respective territorial jurisdictions. Such cases shall be decided on
the basis of the entire record of the proceedings had in the court of
origin, such memoranda and/or briefs as may be submitted by the parties
or required by the Regional Trial Courts. The decision of the Regional
Trial Courts in such cases shall be appealable by petition for review to
the Court of Appeals which may give it due course only when the
petition shows prima facie that the lower court has committed an error of
fact or law that will warrant a reversal or modification of the decision or
judgment sought to be reviewed.

Perfection of an appeal within the statutory or reglementary period is not only

mandatory but also jurisdictional; failure to do so renders the questioned
decision/final order final and executory, and deprives the appellate court of
jurisdiction to alter the judgment or final order, much less to entertain the appeal.
[40]
When the RTC issued its December 2, 2002 and January 20, 2003 Orders, the
court was exercising its appellate jurisdiction over the judgment rendered by the
MeTC of Muntinlupa City. To reiterate, the December 2, 2002 Order of the RTC
denying the appeal of petitioner was a final order, appealable to the CA via petition
for review under Rule 42 of the Rules of Court within the 15-day reglementary
period thereof.
Petitioner received the December 2, 2002 Order of the RTC on December 16,
2002. She then filed a motion for reconsideration on December 23, 2002. She
received the January 20, 2003 Order of the RTC denying the motion for
reconsideration on February 7, 2003. As the 15th day fell on a Saturday, petitioner
had up to February 24, 2003 to file a petition for review before the CA. However,
she allowed the reglementary period to lapse without filing a petition for review in
the CA. Thus, the Order of the RTC dismissing petitioners appeal had become final
and executory, beyond the competence of the CA to reverse, much less modify.

Apparently to resuscitate her lost appeal, petitioner filed, on April 4, 2003, a

petition for certiorari under Rule 65 of the Rules of Court, alleging that the RTC
committed a grave abuse of its discretion in issuing its December 2,
2002 and January 20, 2003 Orders. She likewise insisted that she filed her
Memorandum well within the extension prayed for by her in her November 29,
2002 motion for extension. The CA, however, saw through her scheme and
dismissed her petition, and in so doing acted in accord with case law.
Indeed,certiorari is an extraordinary remedy. It is not and should not be a
substitute for lost appeal.[41] It is not a procedural devise to deprive the winning
party of the fruits of the judgment in his or her favor. Courts should frown upon
any scheme to prolong litigations. A judgment which has acquired finality becomes
immutable and unalterable, hence, may no longer be modified in any respect
except only to correct clerical errors or mistakes. Once a judgment or order
becomes final, all the issues between the parties are deemed resolved and laid to
rest.[42]
The RTC cannot be faulted for dismissing petitioners appeal on account of her
failure to file her appeal memorandum despite the lapse of the reglementary period
therefor. Under Section 7, Rule 46 of the 1997 Rules of Civil Procedure, the failure
of petitioner, as appellant, to file a memorandum within fifteen (15) days from
notice from the clerk of court is a ground for the dismissal of an appeal. The Rule
reads:
Sec. 7. Procedure in the Regional Trial Court.
(a) Upon receipt of the complete record or the record on appeal, the clerk
of court of the Regional Trial Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors
imputed to the lower court, a copy of which shall be furnished by him to
the adverse party. Within fifteen (15) days from receipt of the appellants
memorandum, the appellee may file his memorandum. Failure of the
appellant to file a memorandum shall be a ground for dismissal of the
appeal.

(c) Upon the filing of the memorandum of the appellee, or the expiration
of the period to do so, the case shall be considered submitted for
decision. The Regional Trial Court shall decide the case on the basis of
the entire record of the proceedings had in the court of origin and such
memoranda as are filed.

The records show that, on April 30, 2002, the RTC issued an Order[43] directing
petitioner, as appellant, to file her Memorandum within fifteen days from notice
thereof, with a warning that her failure to file her brief will be a ground for the
dismissal of her appeal. Petitioner received a copy of said Order on May 8,
2002 and had until May 23, 2002within which to file her Memorandum. Petitioner
moved for an extension to file her pleading, until June 7, 2002, on the ground that
Atty. Ronald Solis, the lawyer handling the case, was in the United States on a
personal matter. Atty. Solis had returned to the Philippines but still failed to file the
pleading. Petitioner again prayed for an extension of fifteen days or until June 22,
2002 for her to file said memorandum, and again, she failed. She sought another
extension of fifteen days, until July 5, 2002, to finalize her draft, but once again
failed to file her memorandum. She thereafter filed successive motions for
extension based on her representation that her Memorandum was in the final stages
of preparation:
DUE DATE
July 5, 2002

GROUND FOR EXTENSION

2.
The
draft
of
the
said
Appeal
Memorandum/Brief is in the final stages of
preparation. Initially, undersigned counsel had the
impression that the extension of time he sought
for earlier would be sufficient for the purposes of
finalizing and filing the said pleading. However,
it did not turn out to be so in view of the fact that
undersigned counsel is currently under heavy
burden of work consisting of preparation of
pleadings due in cases of equal import, and
almost daily court appearances and conferences.
[44]

July 18, 2002

1. Due today, July 18, 2002 is the appellants

Appeal Memorandum/Brief.
2. In fact, the same was supposed to be finalized
for filing except that heavy rains and flooding in
the last two (2) weeks had considerably slowed
down work in the law offices, thereby creating
backlogs not only with respect to the present case
but also on other legal assignments of the
undersigned.[45]

August 2, 2002

1. Due today, August 2, 2002 is the appellants

Appeal Memorandum/Brief.
2. The brief is in the process of final
preparation.Undersigned is just incorporating
applicable new jurisprudence on quasi-delictual
liability and double checking his factual
narrations based on the voluminous transcript of
stenographic notes.[46]
August 17, 2002
1. Due tomorrow, August 17, 2002 is the
appellants Appeal Memorandum/Brief.
2. Much as the same [is] in the process of
finalization and filing, the undersigned counsel
was not able to do so because he was absent for
work for the last ten (10) days due to flu and viral
infection.He was only able to report back for
work today. He undertakes to submit the
appropriate medical certificate as soon as it
becomes available.[47]
August 27, 2002
1. Due today, August 27, 2002 is the appellants
Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation
and due to heavy volume of professional work
counsel is constrained to ask for at least ten (10)
more days to finalize and file the same.[48]
September 6, 2002 1. Due today, September 6, 2002 is the appellants
Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation
and due to heavy volume of professional work
counsel is constrained to ask for at least ten (10)
more days to finalize and file the same.[49]
September 16, 2002 1. Due today, September 16, 2002 is the
appellants Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation
and due to heavy volume of professional work
counsel is constrained to ask for at least fifteen
(15) more days to finalize and file the same.[50]
October 1, 2002
1. Due today, October 1, 2002 is the appellants
Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation
and due to heavy volume of professional work
counsel is constrained to ask for at least fifteen
(15) more days to finalize and file the same.[51]
October 16, 2002
1. Due today, October 16, 2002 is the appellants
Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation

and due to heavy volume of professional work

counsel is constrained to ask for at least fifteen
(15) more days to finalize and file the same.[52]

October 31, 2002

November 15, 2002

November 30, 2002

1. Due tomorrow, October 31, 2002 is the

appellants Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation
and due to heavy volume of professional work
counsel is constrained to ask for at least fifteen
(15) more days to finalize and file the same.[53]
1. Due today, November 15, 2002 is the
appellants Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation
and due to heavy volume of professional work
counsel is constrained to ask for at least fifteen
(15) more days to finalize and file the same.[54]
1. Due on November 30, 2002 is the appellants
Appeal Memorandum/Brief.
2. The Brief is in the final stages of preparation
and due to heavy volume of professional work
counsel is constrained to ask for at least fifteen
(15) more days to finalize and file the same.[55]

However, the counsel of petitioner failed to submit any medical certificate as

promised by him. Petitioner incessantly represented to the court that her
Memorandum had been in the final stages of preparation since July 5, 2002, and
repeatedly assured the RTC in her motions for extension that she needed ten (10)
more days to finalize and file her memorandum. Yet, she filed her memorandum
only on December 16, 2002 or almost seven (7) months after the lapse of the 15day reglementary period for her to file her memorandum, and only after the RTC
had already issued its Order on December 2, 2002 dismissing the appeal.
It bears stressing that the grant or denial of motions for extension, including the
duration thereof, lies within the sound discretion of the court, to be exercised in
accordance with the particulars of each case. Moreover, the movant is not justified
in presuming that the extension sought will be granted, or that it will be granted for
the length of time sought.Thus, it is the duty of the movant of extension to exercise
due diligence and file her pleading within the extension granted by the court.[56]
Under Rule 12.03 of the Code of Professional Responsibility, a lawyer should not,
after obtaining extensions of time to file pleadings, memoranda, or briefs, let the
period lapse without submitting the same and making an explanation for failing to
do so. A lawyer is obliged to serve his client with competence and diligence and

defend the latters cause with wholehearted fidelity, care, and dedication. A lawyers
fidelity to the cases of his client requires him to be ever mindful of the
responsibilities that should be expected of him.He is mandated to exert his best
effort to protect, within the bounds of the law, the interest of his client. He should
never neglect a legal matter entrusted to him.
In this case, Atty. Solis, despite having been granted several extensions to
file the memorandum for petitioner, assumed that his motions for extension filed
on November 29, 2002 would be granted by the court and that he had
until December 10, 2002 within which to file the same. He then failed to ascertain
from the records of the court whether his motion had been acted upon. He must
have known that in the event that the court would grant the November 29,
2002 motion for extension, he would only have untilDecember 10, 2002 within
which to file the Memorandum. He waited until after December 16, 2002 to file the
required pleading; by then, the RTC had had enough of petitioners successive
motions for extension and issued the order dismissing the appeal.
Petitioners counsel should not have readily assumed that his November 29,
2002 motion for extension (the last motion filed) had been granted by the court,
for, as it had been, the court denied the same through the December 2,
2002 dismissal order. Petitioners counsel should have been wary that he was filing
the 15th motion for extension, containing substantially the same reasons as his
former motions, and that the court had already given him a latitude of more than
200 days to file his appeal memorandum/brief. It was thus already imperative on
the part of the appellate court to dismiss the appeal for non-filing of the required
memorandum/brief. If at all, the dismissal of the appeal can only be attributed to
counsels negligence. Petitioners counsel ignored his clients case by filing with the
lower court a series of unmeritorious motions for extension of time, and again by
allowing the reglementary period to file a petition for review under Rule 42 to
lapse before the CA.
That respondent did not oppose the motions of petitioner is of de
minimis importance. Petitioner cannot use respondents silence as basis for her
unbridled neglect to file her memorandum. The administration of justice should not
be delayed or derailed at the whims and caprices of the parties.

Petitioner, further, deliberately included in the instant petition a discussion of the

merits of his case, possibly to convince this Court to excuse her counsels
procedural lapses. We are not, however, persuaded. Granting that we, indeed, spare
petitioners blind disregard of the Rules, we still cannot possibly review the factual
findings of the lower court, as we are not a trier of facts; a petition for review
under Rule 45 allows only questions of law to be raised. Thus, the lower courts
factual findings that respondent was not negligent and that the liposuction surgery
was not the proximate cause of the death of Janet Ang, stand. This being so, such
findings defeat any claim for civil liability arising from the offense.As we
discussed in Caia v. People:[57]
It is noted by the Court that in the dispositive portion of the decision of
the Municipal Trial Court, the accused (petitioner in this case) acquittal
was based on the ground that his guilt was not proved beyond reasonable
doubt making it possible for Dolores Perez to prove and recover
damages. (See Article 29, Civil Code) However, from a reading of the
decision of the Municipal Trial Court, there is a clear showing that the
act from which civil liability might arise does not exist. Civil liability is
then extinguished. (See Padilla vs. Court of Appeals, 129 SCRA 558,
570 [1984]).[58]
IN VIEW OF ALL THE FOREGOING, the instant petition is DISMISSED for
lack of merit. Costs against petitioner.

SO ORDERED.