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KAPUNAN; December 29, 1999
Petition For Certiorari
- In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for
the unfortunate comatose condition of a patient scheduled for cholecystectomy.
- Plaintiff Erlinda Ramos was a robust woman except for occasional complaints of discomfort due to pains allegedly caused by the
presence of a stone in her gall bladder she was as normal as any other woman. Because the discomforts somehow interfered with
her normal ways, she sought professional advice. She was advised to undergo an operation for the removal of a stone in her gall
bladdershe underwent a series of examinations which included blood and urine tests which indicated she was fit for surgery. She
and her husband Rogelio met for the first time Dr. Orlino Hozaka, one of the defendants in this case, on June 10, 1985. They
agreed that their date at the operating table at the De Los Santos Medical Center, would be on June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should undergo a cholecystectomy operation after examining the documents presented to him. Rogelio
E. Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a
good anesthesiologist. She was admitted in the hospital and was with her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there for moral support. After praying, she was given injections. At the
operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer
anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at the
Capitol Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to stay inside the operating
- Hours later at about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that Dr.
Hosaka is already here. She then saw people inside the operating room moving, doing this and that, [and] preparing the patient
for the operation. As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She
thereafter heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan (id., p. 17).
Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka
issue an order for someone to call Dr. Calderon, another anesthesiologist. After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patients nailbed became bluish and the patient was placed in a
trendelenburg position. Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos that something
wrong was x x x happening. Dr. Calderon was then able to intubate the patient.
- Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position. At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
- Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors explained
that the patient had bronchospasm. Erlinda Ramos stayed for about four months in the hospital, she incurred hospital bills
amounting to P93,542.25. She has been in a comatose condition. After being discharged from the hospital, she has been staying in
their residence, still needing constant medical attention, with her husband Rogelio incurring a monthly expense ranging from
P8,000.00 to P10,000.00. She was also diagnosed to be suffering from diffuse cerebral parenchymal damage.
- Petitioners filed a civil case for damages with the Regional Trial Court of Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda Ramos.
- During the trial, both parties presented evidence as to the possible cause of Erlindas injury. Plaintiff presented the testimonies of
Dean Herminda Cruz and Dr. Mariano Gavino to prove that the damage sustained by Erlinda was due to lack of oxygen in her brain
caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain
damage was Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
- Regional Trial Court rendered judgment in favor of petitioners. Court of Appeals reversed.
- The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as
Atty. Rogelio Ramos. No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on record
of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4)
days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with
the appellate court a motion for extension of time to file a motion for reconsideration. The motion for reconsideration was submitted
on 4 July 1995. However, the appellate court denied the motion for extension of time in its Resolution dated 25 July 1995.
Meanwhile petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August
1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed
decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to
the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for
reconsideration had already expired.
- A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed
before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted the motion
for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from
the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The
petition was filed on 9 May 1996, well within the extended period given by the Court.
1. WON it should be dismissed for being filed later than allowable 15 day period for the filing of the Motion for Reconsideration
2. WON the doctrine of res ipsa loquitur is applicable

3. WON the Court of Appeals erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlindas
comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the
witnesses for the private respondents
4. What is the cost for the damages
1. NO
- A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to the
fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a
copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he
was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished
to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.
- It is elementary that when a party is represented by counsel, all notices should be sent to the partys lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy
of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of
Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995,
and denied the motion for reconsideration of petitioner, we believe that the receipt of the former should be considered in determining
the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on time.
2. YES
- We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by
Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur.
- Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious
and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the
application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say, as a matter of
common knowledge and observation, if negligence attended the management and care of the patient. Moreover, the liability of the
physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on
an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon
all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur.
- Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in
any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be
viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.
- Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The phrase res ipsa
loquitur is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for
defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who
have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant,
that the accident arose from or was caused by the defendants want of care.
- The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience,
the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is
grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with
the doctrine of common knowledge.
- However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an
independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is
regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense
with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along
with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine may
be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.
- In the above requisites, the fundamental element is the control of the instrumentality which caused the damage. Such element of
control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the
doctrine were present in a particular incident.
- In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to
the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper
standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When
the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and
the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to

establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.
- It does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but
a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made
between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of
res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a
scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or
why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit
if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was
such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could.
3. YES
- The CA commited a reversible error. Private respondents were unable to disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the proximate cause of her piteous condition.
- Dra. Gutierrez failed to properly intubate the patient. In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda
for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological
make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an hour before
the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a clear indicia of her negligence.
- Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlindas coma was due to
bronchospasm mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards this end,
they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private respondents' theory that the oxygen deprivation which led to anoxic encephalopathy, was
due to an unpredictable drug reaction to the short-acting barbiturate. We find the theory of private respondents unacceptable.
- First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court about
anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not therefore
properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not
have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the supposed culprit,
Thiopental Sodium (Pentothal).
- An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. On the basis of
the foregoing transcript, in which the pulmonologist himself admitted that he could not testify about the drug with medical authority, it
is clear that the appellate court erred in giving weight to Dr. Jamoras testimony as an expert in the administration of Thiopental
- Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not have occurred. An injury or damage is proximately caused by an act
or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable
consequence of the act or omission. It is the dominant, moving or producing cause.
- Respondent Dr. Hosakas negligence can be found in his failure to exercise the proper authority (as the captain of the operative
team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show
that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us
that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas cholecystectomy,
and was in fact over three hours late for the latters operation. Because of this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient.
Thus, he shares equal responsibility for the events which resulted in Erlindas condition.
- We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling
up specialist staff with attending and visiting consultants, who are allegedly not hospital employees, presents problems in
apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real.
- In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within
the hospital premises. Doctors who apply for consultant slots, visiting or attending, are required to submit proof of completion of
residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or
by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent
- After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other
tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer review

committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
- In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While
consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients
condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employeremployee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in
medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting
physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent
doctors for petitioners condition.
- The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code
which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility
under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have
observed the diligence of a good father of the family to prevent damage. In other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who
should prove that they observed the diligence of a good father of a family to prevent damage.
- In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to
adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It
failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such
proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article
2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlindas condition.
- Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 of the Civil Code.
4. Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the
correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid
- Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.
- Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence
of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into
account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult to predict.
- In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury
caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words,
temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic
and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages cover two distinct phases.
- As it would not be equitable - and certainly not in the best interests of the administration of justice - for the victim in such cases to
constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take
into account the cost of proper care.
- In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in
that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at
the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less
would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore be
- Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify. Even
the temperate damages herein awarded would be inadequate if petitioners condition remains unchanged for the next ten years.
- The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patients illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering
their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The familys moral injury and suffering in this case is clearly a real one. For the foregoing
reasons, an award of P2,000,000.00 in moral damages would be appropriate.
- Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and
nature of the instant suit we are of the opinion that attorneys fees valued at P100,000.00 are likewise proper.
DISPOSITION the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or
miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as
exemplary damages and attorneys