DOCTRINES

1. Doctrine of Vicarious Liability / Imputed Negligence /

Doctrine of Respondeat Superior
Vicarious liability is a legal doctrine that assigns liability for an
injury to a person who did not cause the injury but who has a
particular legal relationship to the person who did act
negligently.

whether the 'captain' is directly responsible for an alleged error

or act of alleged negligence.
6. Doctrine of Res Ipsa Loquitur or Doctrine of Common
Knowledge
7. Doctrine of Assumption of Risk
A person who knows the risk or injury from a known
danger is disbarred from recovery.

The doctrine of respondeat superior (Latin for "let the master

answer") is based on the employer-employee relationship. The
doctrine makes the employer responsible for a lack of care on
the part of an employee in relation to those to whom the
employer owes a duty of care. For respondeat superior to apply,
the employee's negligence must occur within the scope of her
employment. The employer is charged with legal responsibility
for the negligence of the employee because the employee is
held to be an agent of the employer.

Assumption of risk bars or reduces a plaintiff's right to recovery

against a negligent tortfeasor if the defendant can demonstrate
that the plaintiff voluntarily and knowingly assumed the risks at
issue inherent to the dangerous activity in which he was
participating at the time of his or her injury. The doctrine of
assumption of risk is also known as volenti non fit injuria.

2. Imputed Contributory Negligence Doctrine

a. Express Agreement / Implied Acceptance of Risk

Provides that the contributory negligence of the plaintiff bars

recovery against a negligent defendant when the plaintiff
would be vicariously liable for the negligent acts of the
defendant.

b. Knowledge of Risk

3. Doctrine of Contributory Negligence or Doctrine of Common

Fault
The act or omission amounting to want of ordinary care in the
part of the complainant or plaintiff, which, concurring with the
negligence of the accused or the defendant is the proximate
cause of the injury. The liability of the defendant is mitigated or
the defendant will not be held liable at all.
3. Doctrine of Ostensible Agent or Doctrine of Apparent
Authority
Apparent authority results from a manifestation by the principal
to a third person that another is his agent. The manifestation
may be made directly to the third person or to the community at
large by signs or advertising. But, "apparent authority exists only
to the extent that it is reasonable for the third person dealing
with the agent to believe the agent is authorized.
4. Borrowed Servant Doctrine
A principle under which the party usually liable for a
person's actionseg, a hospital responsible for a nurse, is
absolved of that responsibility when that person is asked to do
somethingeg, by a surgeon, which is outside of the bounds of
hospital policy.
5. Captain of the Ship Doctrine
An adaptation from the 'borrowed servant rules', as
applied to an operating room holding the person in chargeeg,
a surgeon responsible for all under his supervision, regardless of

REQUISITES:

c. Voluntary Assumption
d. Injury
8. Doctrine of Last Clear Chance / Doctrine of Discovered Peril /
Doctrine of Supervening Negligence / Humanitarian Doctrine /
Under this doctrine, a negligent plaintiff can nonetheless
recover if he is able to show that the defendant or another
person had the last opportunity to avoid the accident.
9. Doctrine of Foreseeability
A physician cannot be held liable for negligence if the
injury sustained by the patient is on account of unforeseen
conditions, after the exercise of due care and negligence.
NOGALES v CAPITOL MEDICAL CENTER
Facts: Corazon Nogales, who was 37 years old and pregnant
with her fourth child, was under the exclusive prenatal care of
Dr. Estrada. On her last trimester of pregnancy, Dr. Estrada
noted an increase in blood pressure and development of leg
edema indicating preeclampsia, which is a dangerous
complication. When Corazon experienced mild labor pains one
night, she was brought to Dr. Estrada, who advised her
immediate admission to Capitol Medical Center (CMC). When
Corazon was admitted in CMC, her husband, Rogelio, signed the
Consent on Admission and Admission Agreement. Later on,
Corazon was transferred to the Delivery Room. During her
labor, Dr. Estrada applied low forceps to extract the baby but in
the process, a piece of cervical tissue was torn, which not only
caused vaginal bleeding to Corazon but also left the baby in a
weak condition warranting intubation and resuscitation. Due to
the profuse vaginal bleeding, Dr. Espinola (head of Obstetrics-

Gynecology Department of CMC), after having been informed

of Corazons condition, ordered immediate hysterectomy. It
took an hour for Dr. Espinola to reach CMC due to typhoon
Didang, during which time, Corazon already died due to
hemorrhage, post partum.
Corazons death prompted Rogelio Nogales to file a complaint
for damages with the RTC against CMC, Dr. Estrada, Dr.
Espinola, etc. on the ground that the physicians were negligent
in the treatment and management of Corazons condition and
that CMC was negligent in the selection an supervision of its
physicians and staff. The RTC held Dr. Estrada liable and
absolved the rest. CA affirmed the decision. It concluded that
since Rogelio engaged Dr. Estrada as the attending physician of
his wife, any liability for malpractice must be Dr. Estradas sole
responsibility. The other hospital staff merely became Dr.
Estradas temporary servants and agents who are under his
supervision and responsibility and not the hospitals.
(The case was final with regard to Dr. Estrada since he no longer
appealed to the CA.)
Can CMC and the other physicians and hospital personnel be
held liable?
Held: Yes, with regard to CMC. No, with regard to the rest.
CMC is liable for Dr. Estradas negligence under the doctrine of
respondeat superior under Article 2180 which provides that
[t]he obligation imposed by Article 2176 [on quasi-delict] is
demandable not only for ones own acts or omissions, but also
for those of persons for whom one is responsibleEmployers
shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business
or industryThe responsibility treated of in this article shall
cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage.
For CMCs liability to attach under the doctrine of respondeat
superior, it must first be established that an employer-employee
relationship existed between CMC and Dr. Estrada. In Ramos v.
CA, the SC has already held that the determining factor to
establish such a relationship is the exercise of control as to the
means of accomplishing a task of the employer over its
employee. In this case, the SC finds no evidence of such control.
Corazon was under the exclusive prenatal care of Dr. Estrada
and the fact that Dr. Estrada enjoyed staff privileges and was
allowed to use CMCs facilities during an emergency did not
make him an employee of CMC. As such, Dr. Estrada is
considered an independent contractor.
However, under the doctrine of apparent authority, which is a
species of the doctrine of estoppel, CMC may still be held liable
even if Dr. Estrada is an independent contractor. Under this
doctrine, it is essential that: (1) CMC acted in a manner which
would lead a reasonable person to conclude that the individual
who was alleged to be negligent was an employee or agent of
the hospital, and (2) Plaintiff (Nograles) acted in reliance upon

the conduct of the hospital or its agent, consistent with ordinary

care and prudence. With regard to the first factor, CMC need
not make express representations to the patient that the
treating physician is its employee; rather a representation may
be general and implied. The following circumstances show that
the first factor is present: (1) CMC granted staff privileges to Dr.
Estrada, (2) CMC made Rogelio sign consent forms printed on
CMC letterhead, (3) Dr. Estradas referral of Corazons profuse
vaginal bleeding to Dr. Espinola, who was then the Head of the
Obstetrics-Gynecology Department of CMC, gave the
impression that Dr. Estrada as a member of CMCs medical staff
was collaborating with other CMC-employed specialists. The
second factor is also present since the spouses Nogales
specifically chose Dr. Estrada to handle Corazons delivery not
only because of their friends recommendation, but more
importantly because of Dr. Estradas connection with a
reputable hospital (CMC).
Aside from the foregoing, CMC cannot deny liability merely
because of the consent or release forms signed by Rogelio.
These are considered contracts of adhesion and are thus
construed strictly against hospitals. Moreover, a blanket release
in favor of hospitals from any and all claims, which includes
claims due to bad faith or gross negligence, would be contrary
to public policy and thus void.
Dr. Estrada is an independent contractor. Applying the control
test, SC did not find evidence pointing to CMC's exercise of
control over Dr. Estrada's treatment and management of
Corazon's condition. The patient was under the exclusive
prenatal care of Dr. Estrada. CMC merely allowed Dr. Estrada to
use its facilities when Corazon was about to give birth, which
CMC considered an emergency.
But while SC held that Dr. Estrada is not CMCs employee, CMC
is vicariously liable under the doctrine of apparent authority.
General Rule: A hospital is not liable for the negligence of an
independent contractor-physician.
Except: When physician is the "ostensible" agent of the hospital
(doctrine of apparent authority)
Requisites for the doctrine to apply:
(1) the hospital, or its agent, acted in a manner that would lead
a reasonable person to conclude that the individual who was
alleged to be negligent was an employee or agent of the
hospital;
(2) where the acts of the agent create the appearance of
authority, the plaintiff must also prove that the hospital had
knowledge of and acquiesced in them; and
(3) the plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and
prudence.
Two Factors to consider:

1) An inquiry on whether the hospital acted in a manner which

would lead a reasonable person to conclude that the individual
who was alleged to be negligent was an employee or agent of
the hospital. The hospital need not make express
representations to the patient that the treating physician is an
employee of the hospital; rather a representation may be
general and implied.
2) An inquiry on whether the plaintiff acted in reliance upon the
conduct of the hospital or its agent, consistent with ordinary
care and prudence.
Application of these factors to this case:
1) CMC impliedly held out Estrada as a member of its medical
staff.
a) CMC granted staff privileges to Dr. Estrada. CMC extended
its medical staff and facilities to Dr. Estrada.
b) CMC made Rogelio sign consent forms printed on CMC
letterhead. These forms did not indicate that he was an
independent contractor-physician. No one from CMC informed
the Spouses
c) Dr. Estrada's referral of Corazon's profuse vaginal bleeding to
Dr. Espinola, who was then the Head of the Obstetrics and
Gynecology Department of CMC, gave the impression that Dr.
Estrada as a member of CMC's medical staff was collaborating
with other CMCemployed specialists in treating Corazon.
2) Rogelio testified that he and his wife specifically chose Dr.
Estrada to handle Corazon's delivery not only because of their
friend's recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the CMC." In
other words, Dr. Estrada's relationship with CMC played a
significant role in the Spouses Nogales' decision in accepting
Dr. Estrada's services
REYES v SISTERS OF MERCY (Res Ipsa Loquitur)
Facts: On January 8, 1987 Jorge Reyes was taken to the Mercy
Community Center since he was suffering from recurring fevers
and chills. Dr. Rico the resident and admitting physician, gave
Jorge a physical examination and took his medical history. Since
the hospital was getting a lot of patients with Typhoid Fever,
and Jorge was exhibiting similar symptoms, Dr. Rico ordered a
widal test, which was a standard test for typhoid fever. Jorge
was found positive of typhoid Fever. Dr. Blanes the subsequent
attending doctor, gave george a physical examination and took
also his medical history. Dr. Blanes ordered compatibility tests
with choloromycetin, finding no adverse reactions, she
administered the drug in 2 ocassions.
At around 1 am of the following day, the temperature of Jorge
rose to 41c and exhibited chills and convulsions. Subsequently
even after the administration of drugs to cure the ailment, Jorge
slipped into cyanosis and died. The heirs of Jorge filed a
complaint for medical malpractice against Dr. Rico and Dr.
Blanes. Trial court absolved the respondents, and CA

subsequently affirmed this decision. The petitioners appealed

by saying that Res Ipsa Loquitur was applicable to this case.
Issue/s: 1. Whether Res Ipsa Loquitur was applicable?
2. Whether the Dr. Rico and Dr. Blanes were negligent?
Held: No to Both.
1.
The alleged failure to observe due care was not
immediately apparent to a layman so as to justify application of
Res Ipsa Loquitur. The question required expert opinion on the
alleged breach by respondents of standard of care required by
the circumstances. Furthermore, on the issue of correctness of
her diagnosis, no presumption of negligence can be applied to
Dr. Rico.
2.
Dr. Rico did not depart from the reasonable standard
recommended by the experts as she in fact observed the due
care required under the circumstances. Though the widal test is
not conclusive, it remains a standard diagnostic test for typhoid
fever and, in the present case, greater accuracy through
repeated testing was rendered unobtainable by the early death
of the patient. With 15-20 patients with typhoid fever being
admitted and considering Jorges condition, any doctor of
reasonable skill will get the impression that Jorge had typhoid
fever.
RAMOS v COURT OF APPEALS (Res Ipsa Loquitor)
Facts:
the removal of a stone in her gall bladder and was referred to
Dr. Hosaka (H), who recommended the services of an
anesthesiologist, Dr. Gutierrez (G).
However, the operation was delayed because Dr. H arrived
more than three hours late.
R, and had to be replaced
by Dr. Calderon (C), but Mrs. Rs nailbeds remained bluish. Mrs.
R. was taken to the ICU, and the doctors alleged that she had
bronchospasm. She was released form the hospital four months
later, but remained in a comatose condition almost 14 years
after the operation until she died.
HELD:
administration of anesthesia on a patient. She failed to perform
a thorough preevaluation for anesthesia (taking patients
medical history, reviewing his/her current drug therapy, etc.)
and physical examination (examination of the upper airway,
central nervous system, cardiovascular system and lungs).
-up and
needs. Dr. Gs act of seeing the patient for the first time only an
hour before the scheduled operation was 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 Hippocratic Oath.
Gs performance of the faulty intubation on her. The bluish
discoloration and enlargement of Mrs. Rs stomach indicated
that the tube was improperly inserted into the esophagus
instead of the trachea, diverting the supply of oxygen from the
lungs to the gastrointestinal tract, causing a decrease of blood
supply to her brain. Injury does not normally occur absent any
negligence in the administration of anesthesia and in the sue of
an endotracheal tube.
jurisprudence to do away with the Captain-of-the-Ship
doctrine does not mean that this Court will ipso facto follow
said trend. Dr. H clearly exercised a certain degree of, at the
very least, supervision over the procedure then being
performed on Mrs. R, as he was the one who recommended Dr.
G to Mrs. R and was the attending physician of Mrs. R. It was Dr.
H who gave instructions to call another anesthesiologist and
cardiologist to help resuscitate Mrs. R.
promptly, as he was more than 3 hours late, having scheduled 2
procedures on the same day, 30 minutes apart from each other,
at different hospitals, in reckless disregard for his patients well
being. The unreasonable delay aggravated Mrs. Rs anxiety,
which must have adversely affected the administration of
anesthesia on her. [G.R. No. 118231. July 5, 1996]
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
vs. COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and
FLOTILDE G. VILLEGAS, respondents.
Facts:
section on Mrs. Villegas (V). V remained in the hospital for a
week after giving birth, was regularly visited by Dr. B.
and complained of being feverish and of having lost her
appetite. Dr. B prescribed meds, but the abdominal pains and
fever kept recurring.
who found an ovarian
cyst on each of Vs ovaries and a piece of rubber material on the
right side of the uterus embedded on the ovarian cyst. Rubber
material might have been a torn section of a surgeons gloves.
Issue: W/N Dr. B can be held liable for fault or negligence
Held: Yes.
itself. Rebuttable presumption that defendant was negligent,
which arises upon proof that the instrumentality causing injury
was in defendants exclusive control, and that the accident was
one which ordinarily does not happen in the absence of
negligence.
culpable negligence on the party charged. It merely determines

and regulates what shall be prima facie evidence thereof and

facilitates the burden of plaintiff of proving a breach of the duty
of due care. It can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not
readily available.
-section were under the exclusive
control of Dr. B. V has no direct evidence as to how the foreign
object ended up in her body, which does not occur, however,
unless through the intervention of negligence. Aside from the csection, V underwent no other operation which could have
caused such appearance of the foreign object in her body. Dr. B
failed to overcome the presumption of negligence.
D E C I S I O N - DAVIDE, JR., J.:
Throughout history, patients have consigned their fates and
lives to the skill of their doctors. For a breach of this trust, men
have been quick to demand retribution. Some 4,000 years ago,
the Code of Hammurabi[1] then already provided: "If a
physician make a deep incision upon a man with his bronze
lancet and cause the man's death, or operate on the eye socket
of a man with his bronze lancet and destroy the man's eyes, they
shall cut off his hand."[2] Subsequently, Hippocrates[3] wrote
what was to become part of the healer's oath: "I will follow that
method of treatment which according to my ability and
judgment, I consider for the benefit of my patients, and abstain
from whatever is deleterious and mischievous . . . . While I
continue to keep this oath unviolated may it be granted me to
enjoy life and practice the art, respected by all men at all times
but should I trespass and violate this oath, may the reverse be
my lot." At present, the primary objective of the medical
profession is the preservation of life and maintenance of the
health of the people.[4]
Needless to say then, when a physician strays from his sacred
duty and endangers instead the life of his patient, he must be
made to answer therefor. Although society today cannot and
will not tolerate the punishment meted out by the ancients,
neither will it and this Court, as this case would show, let the act
go uncondemned.
The petitioners appeal from the decision[5] of the Court of
Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision[6] of 21 December 1990 of Branch 30 of
the Regional Trial Court (RTC) of Negros Oriental in Civil Case
No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental
Provincial Hospital, Dumaguete City from January 9, 1978 to
September 1989. Between 1987 and September, 1989 she was
also the Actg. Head of the Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin
for prenatal care as the latter's private patient sometime before
September 21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with the

assistance of Dr. Doris Teresita Sy who was also a Resident
Physician at the same Hospital, C.I. and O.R. Nurse Arlene
Diones and some student nurses performed a simple cesarean
section on Mrs. Villegas at the Negros Oriental Provincial
Hospital and after 45 minutes Mrs. Villegas delivered her first
child, Rachel Acogido, at about 11:45 that morning. Thereafter,
Plaintiff remained confined at the Hospital until September 27,
1988 during which period of confinement she was regularly
visited by Dr. Batiquin. On September 28, 1988, Mrs. Villegas
checked out of the Hospital . . . and on the same day she paid
Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00
as "professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer
abdominal pains and complained of being feverish. She also
gradually lost her appetite, so she consulted Dr. Batiquin at the
latter's polyclinic who prescribed for her certain medicines . . .
which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate
by Dr. Batiquin on October 31, 1988 . . . certifying to her
physical fitness to return to her work on November 7, 1988. So,
on the second week of November, 1988 Mrs. Villegas returned
to her work at the Rural Bank of Ayungon, Negros Oriental.

The piece of rubber allegedly found near private respondent

Flotilde Villegas' uterus was not presented in court, and
although Dr. Ma. Salud Kho testified that she sent it to a
pathologist in Cebu City for examination,[8] it was not
mentioned in the pathologist's Surgical Pathology Report.[9]
Aside from Dr. Kho's testimony, the evidence which mentioned
the piece of rubber are a Medical Certificate,[10] a Progress
Record,[11] an Anesthesia Record,[12] a Nurse's Record,[13]
and a Physician's Discharge Summary.[14] The trial court,
however, regarded these documentary evidence as mere
hearsay, "there being no showing that the person or persons
who prepared them are deceased or unable to testify on the
facts therein stated . . . . Except for the Medical Certificate
(Exhibit "F"), all the above documents were allegedly prepared
by persons other than Dr. Kho, and she merely affixed her
signature on some of them to express her agreement thereto . . .
."[15] The trial court also refused to give weight to Dr. Kho's
testimony regarding the subject piece of rubber as Dr. Kho "may
not have had first-hand knowledge" thereof,[16] as could be
gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't
know where the rubber was.[17]

The abdominal pains and fever kept on recurring and bothered

Mrs. Villegas no end and despite the medications administered
by Dr. Batiquin. When the pains become unbearable and she
was rapidly losing weight she consulted Dr. Ma. Salud Kho at
the Holy Child's Hospital in Dumaguete City on January 20,
1989.

The trial court deemed vital Dr. Victoria Batiquin's testimony

that when she confronted Dr. Kho regarding the piece of
rubber, "Dr. Kho answered that there was rubber indeed but
that she threw it away."[18] This statement, the trial court
noted, was never denied nor disputed by Dr. Kho, leading it to
conclude:

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho
examined Mrs. Villegas at the Holy Child's Hospital on January
20, 1989 she found Mrs. Villegas to be feverish, pale and was
breathing fast. Upon examination she felt an abdominal mass
one finger below the umbilicus which she suspected to be either
a tumor of the uterus or an ovarian cyst, either of which could
be cancerous. She had an x-ray taken of Mrs. Villegas' chest,
abdomen and kidney. She also took blood tests of Plaintiff. A
blood count showed that Mrs. Villegas had [an] infection inside
her abdominal cavity. The result of all those examinations
impelled Dr. Kho to suggest that Mrs. Villegas submit to another
surgery to which the latter agreed.

There are now two different versions on the whereabouts of that

offending "rubber" (1) that it was sent to the Pathologist in
Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho
threw it away as told by her to Defendant. The failure of the
Plaintiffs to reconcile these two different versions serve only to
weaken their claim against Defendant Batiquin.[19]

When Dr. Kho opened the abdomen of Mrs. Villegas she found
whitish-yellow discharge inside, an ovarian cyst on each of the
left and right ovaries which gave out pus, dirt and pus behind
the uterus, and a piece of rubber materials on the right side of
the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4
inch in size. This piece of rubber material which Dr. Kho
described as a "foreign body" looked like a piece of a "rubber
glove" . . . and which is [sic] also "rubber-drain like . . . . It could
have been a torn section of a surgeon's gloves or could have
come from other sources. And this foreign body was the cause
of the infection of the ovaries and consequently of all the
discomfort suffered by Mrs. Villegas after her delivery on
September 21, 1988.[7]

All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private respondents'
documentary evidence, deemed Dr. Kho's positive testimony to
definitely establish that a piece of rubber was found near
private respondent Villegas' uterus. Thus, the Court of Appeals
reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established
by preponderance of evidence. The trial court itself had
narrated what happened to appellant Flotilde after the
cesarean operation made by appellee doctor . . . . After the
second operation, appellant Flotilde became well and healthy.
Appellant Flotilde's troubles were caused by the infection due
to the "rubber" that was left inside her abdomen. Both
appellants testified that after the operation made by appellee
doctor, they did not go to any other doctor until they finally
decided to see another doctor in January, 1989 when she was
not getting any better under the care of appellee Dr. Batiquin . .

. . Appellee Dr. Batiquin admitted on the witness stand that she

alone decided when to close the operating area; that she
examined the portion she operated on before closing the same .
. . . Had she exercised due diligence, appellee Dr. Batiquin
would have found the rubber and removed it before closing the
operating area.[20]

After deciphering the cryptic petition, we find that the focal

point of the instant appeal is the appreciation of Dr. Kho's
testimony. The petitioners contend that the Court of Appeals
misappreciated the following portion of Dr. Kho's testimony:

The appellate court then ruled:

A Just in case, I was just thinking at the back of my mind, just in

case this would turn out to be a medico-legal case, I have heard
somebody that [sic] says [sic] there is [sic] a foreign body that
goes with the tissues but unluckily I don't know where the
rubber was. It was not in the Lab, it was not in Cebu.[23] (Italics
supplied)

Appellants' evidence show[s] that they paid a total of

P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and
medical expenses together with doctor's fees in the total
amount P9,900.00 (Exhs. G and G-2)] for the second operation
that saved her life.
For the miseries appellants endured for more than three (3)
months, due to the negligence of appellee Dr. Batiquin, they are
entitled to moral damages in the amount of P100,000.00;
exemplary damages in the amount of P20,000.00 and attorney's
fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children
because her uterus and ovaries were removed by Dr. Kho is not
taken into consideration as it is not shown that the removal of
said organs were the direct result of the rubber left by appellee
Dr. Batiquin near the uterus. What is established is that the
rubber left by appellee cause infection, placed the life of
appellant Flotilde in jeopardy and caused appellants fear, worry
and anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the complaint
for damages is REVERSED and SET ASIDE. Another judgment is
hereby entered ordering defendants-appellees to pay plaintiffsappellants the amounts of P17,000.00 as and for actual
damages; P100,000.00 as and for moral damages; P20,000.00 as
and for exemplary damages; and P25,000.00 as and for
attorney's fees plus the cost of litigation.
SO ORDERED.[21]
From the above judgment, the petitioners appealed to this
Court claiming that the appellate court; (1) committed grave
abuse of discretion by resorting to findings of fact not
supported by the evidence on record, and (2) exceeded its
discretion, amounting to lack or excess of jurisdiction, when it
gave credence to testimonies punctured with contradictions
and falsities.
The private respondents commented that the petition raised
only questions of fact, which were not proper for review by this
Court.
While the rule is that only questions of law may be raised in a
petition for review on certiorari, there are exceptions, among
which are when the factual findings of the trial court and the
appellate court conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the appellate
court misapprehended the facts.[22]

Q What is the purpose of the examination?

The petitioners prefer the trial court's interpretation of the

above testimony, i.e., that Dr. Kho's knowledge of the piece of
rubber was based on hearsay. The Court of Appeals, on the
other hand, concluded that the underscored phrase was taken
out of context by the trial court. According to the Court of
Appeals, the trial court should have likewise considered the
other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge
inside the abdomen, there was an ovarian cyst on the left and
side and there was also an ovarian cyst on the right which, on
opening up or freeing it up from the uterus, turned out to be
pus. Both ovaries turned out . . . to have pus. And then, cleaning
up the uterus, at the back of the uterus it was very dirty, it was
full of pus. And there was a [piece of] rubber, we found a [piece
of] rubber on the right side.[24]
We agree with the Court of Appeals. The phrase relied upon by
the trial court does not negate the fact that Dr. Kho saw a piece
of rubber in private respondent Villegas' abdomen, and that she
sent it to a laboratory and then to Cebu City for examination by
a pathologist.[25] Not even the Pathologist's Report, although
devoid of any mention of a piece of rubber, could alter what Dr.
Kho saw. Furthermore, Dr. Kho's knowledge of the piece of
rubber could not be based on other than first hand knowledge
for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.[26]
The petitioners emphasize that the private respondents never
reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the
witness stand that when Dr. Batiquin confronted Dr. Kho about
the foreign body, the latter said that there was a piece of rubber
but that she threw it away. Although hearsay, Dr. Batiquin's
claim was not objected to, and hence, the same is
admissible[27] but it carries no probative value.[28]
Nevertheless, assuming otherwise, Dr. Batiquin's statement

cannot belie the fact that Dr. Kho found a piece of rubber near
private respondent Villegas' uterus. And even if we were to
doubt Dr. Kho as to what she did to the piece of rubber, i.e.,
whether she threw it away or sent it to Cebu City, we are not
justified in distrusting her as to her recovery of a piece of rubber
from private respondent Villegas' abdomen. On this score, it is
perfectly reasonable to believe the testimony of a witness with
respect to some facts and disbelieve his testimony with respect
to other facts. And it has been aptly said that even when a
witness is found to have deliberately falsified in some material
particulars, it is not required that the whole of his
uncorroborated testimony be rejected, but such portions
thereof deemed worthy of belief may be credited.[29]
It is here worth nothing that the trial court paid heed to the
following portions of Dr. Batiquin's testimony: that no rubber
drain was used in the operation,[30] and that there was neither
any tear on Dr. Batiquin's gloves after the operation nor blood
smears on her hands upon removing her gloves.[31] Moreover,
the trial court pointed out that the absence of a rubber drain
was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during
the operation on private respondent Villegas.[32] But the trial
court failed to recognize that the assertions of Drs. Batiquin and
Sy were denials or negative testimonies. Well-settled is the rule
that positive testimony is stronger than negative testimony.[33]
Of course, as the petitioners advocate, such positive testimony
must come from a credible source, which leads us to the second
assigned error.
While the petitioners claim that contradictions and falsities
punctured Dr. Kho's testimony, a reading of the said testimony
reveals no such infirmity and establishes Dr. Kho as a credible
witness. Dr. Kho was frank throughout her turn on the witness
stand. Furthermore, no motive to state any untruth was ever
imputed against Dr. Kho, leaving her trustworthiness
unimpaired.[34] The trial court's following declaration shows
that while it was critical of the lack of care with which Dr. Kho
handled the piece of rubber, it was not prepared to doubt Dr.
Kho's credibility, thus only supporting out appraisal of Dr. Kho's
trustworthiness:
This is not to say that she was less than honest when she testified
about her findings, but it can also be said that she did not take
the most appropriate precaution to preserve that "piece of
rubber" as an eloquent evidence of what she would reveal
should there be a "legal problem" which she claim[s] to have
anticipated.[35]
Considering that we have assessed Dr. Kho to be a credible
witness, her positive testimony [that a piece of rubber was
indeed found in private respondent Villegas' abdomen] prevails
over the negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court
has had occasion to delve into the nature and operation of this
doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing
which causes injury is shown to be under the management of
the defendant, and the accident is such as in the ordinary course

of things does not happen if those who have the management

use proper care, it affords reasonable evidence, in the absence
of an explanation by the defendant, that the accident arose
from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable
presumption or inference that defendant was negligent, which
arises upon proof that [the] instrumentality causing injury was in
defendant's exclusive control, and that the accident was one
which ordinary does not happen in absence of negligence. Res
ipsa loquitur is [a] rule of evidence whereby negligence of [the]
alleged wrongdoer may be inferred from [the] mere fact that
[the] accident happened provided [the] character of [the]
accident and circumstances attending it lead reasonably to
belief that in [the] absence of negligence it would not have
occurred and that thing which caused injury is shown to have
been under [the] management and control of [the] alleged
wrongdoer . . . . Under [this] doctrine . . . the happening of an
injury permits an inference of negligence where plaintiff
produces substantial evidence that [the] injury was caused by an
agency or instrumentality under [the] exclusive control and
management of defendant, and that the occurrence [sic] was
such that in the ordinary course of things would not happen if
reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence. The
doctrine is not a rule of substantive law, but merely a mode of
proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a particular case, is
not intended to and does not dispense with the requirement of
proof of culpable negligence on the party charged. It merely
determines and regulates what shall be prima facie evidence
thereof and facilitates the burden of plaintiff of proving a
breach of the duty of due care. The doctrine can be invoked
when and only when, under the circumstances involved, direct
evidence is absent and not readily available.[36]
In the instant case, all the requisites for recourse to the doctrine
are present. First, the entire proceedings of the cesarean section
were under the exclusive control of Dr. Batiquin. In this light,
the private respondents were bereft of direct evidence as to the
actual culprit or the exact cause of the foreign object finding its
way into private respondent Villegas' body, which, needless to
say, does not occur unless through the intervention of
negligence. Second, since aside from the cesarean section,
private respondent Villegas underwent no other operation
which could have caused the offending piece of rubber to
appear in her uterus, it stands to reason that such could only
have been a by-product of the cesarean section performed by
Dr. Batiquin. The petitioners, in this regard, failed to overcome
the presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber in private
respondent Villegas' abdomen and for all the adverse effects
thereof.

As a final word, this Court reiterates its recognition of the vital

role the medical profession plays in the lives of the people,[37]
and State's compelling interest to enact measures to protect the
public from "the potentially deadly effects of incompetence and
ignorance in those who would undertake to treat our bodies
and minds for disease or trauma."[38] Indeed, a physician is
bound to serve the interest of his patients "with the greatest of
solicitude, giving them always his best talent and skill."[39]
Through her tortious conduct, the petitioner endangered the
life of Flotilde Villegas, in violation of her profession's rigid
ethical code and in contravention of the legal standards set
forth for professionals, in the general,[40] and members of the
medical profession,[41] in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the
Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED
in toto.
Costs against the petitioners. SO ORDERED.
LEANDRO CARILLO, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
FELICIANO, J.:
Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of
the Decision of the Court of Appeals dated 28 November 1988,
which affirmed his conviction by the Regional Trial Court of the
crime of simple negligence resulting in homicide, for the death
of his thirteen (13) year old patient
Catherine Acosta. The trial court had sentenced him to suffer
the penalty of arresto mayor in its medium period (four [4]
months' imprisonment), as well as to pay the heirs of his patient
an indemnity of P30,000.00 for her death, P10,000.00 as
reimbursement for actual expenses incurred, P50,000.00 as
moral damages and to pay the costs of the suit. 1
The information filed against petitioner and his co-accused, the
surgeon Dr. Emilio Madrid, alleged the following:
That on or about the 31st of May 1981, in the
municipality of Paraaque, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating
together and mutually helping and aiding with one
another, without taking the necessary care and
precaution to avoid injury to person, did then and there
willfully, unlawfully and feloniously operate, in a
reckless, careless and imprudent manner and neglected
to exercise their respective medical knowhow and tasks
and/or departed from the recognized standard in their
treatment, diagnosis of the condition, and operation of
the patient, one Catherine Acosta, 13 years old, which
negligence caused the death of the said Catherine
Acosta. 2
Petitioner and Dr. Emilio Madrid entered pleas of not guilty at
arraignment and the case proceeded to trail with Judge Job B.
Madayag presiding. 3

The prosecution presented as its principal evidence the

testimony of four (4) witnesses, namely: 1) Yolanda Acosta,
Catherine's mother, who was able to observe the conduct of the
accused outside the operating theater before, during and after
the appendectomy procedure carried out on her daughter; 4 2)
Domingo Acosta, Catherine's father, who corroborated some
parts of his wife's
testimony; 5 3) Dr. Horacio Buendia, an expert witness who
described before the trial court the relationship between a
surgeon and an anesthetist in the course of a surgical operation,
as well as define the likelihood of cardiac arrest as a post
operative complication; 6 and 4) Dr. Nieto Salvador, an expert
witness who analyzed and explained the significance of the
results of the pathological study and autopsy conducted on
Catherine's body by one Dr. Alberto Reyes. 7
After the prosecution had rested its case, the defense was
granted leave to file a demurrer to the evidence. 8 After failing
to file the demurrer within the reglementary period, Judge
Manuel Yuzon, who had in the meantime taken over as
presiding judge of the sala where this case was pending, denied
the defense motion for extension of time to file demurrer and
declared the case submitted for decision. 9
On 19 September 1985, the trial court promulgated its decision
convicting both the accused of the crime charged.10
On appeal, the Court of Appeals affirmed the judgment of
conviction, and specified that the civil liability of the two (2)
accused was solidary in nature. 11
Petitioner Dr. Carillo alone filed the present Petition for Review
with the Court, seeking reversal of his conviction, or in the
alternative, the grant of a new trial. Dr. Madrid did not try to
appeal further the Court of Appeals Decision. Accordingly, the
judgment of conviction became final insofar as the accused
surgeon Dr. Madrid is concerned.
The facts of the case as established by the Court of Appeals are
as follows:
The deceased, Catherine Acosta, a 13 year old girl,
daughter of spouses Domingo and Yolanda Acosta,
complained to her father at about 10:30 o'clock in the
morning of May 31, 1981 of pains in the lower part of
her abdomen. Catherine was then brought to Dr. Elva
Pea. Dra. Pea called for Dr. Emilio Madrid and the
latter examined Catherine Acosta. According to Dr.
Madrid, his findings might be appendicitis. Then Dr.
Pea told Catherine's parents to bring the child to the
hospital in Baclaran so that the child will be observed.
At the Baclaran General Hospital, a nurse took blood
sample form the child. The findings became known at
around 3:00 o'clock in the afternoon and the child was
scheduled for operation at 5:00 o'clock in the
afternoon. The operation took place at 5:45 p.m.
because Dr. Madrid arrived only at that time.

When brought inside the operating room, the child was

feeling very well and they did not subject the child to
ECG (electrocardiogram) and
X-ray.

Q I noticed that the heartbeat of my daughter was not

normal. And I noticed that her hospital gown is rising up
and down.
Q What transpired after that?

The appellant Dr. Emilio Madrid, a surgeon, operated

on Catherine. He was assisted by appellant, Dr. Leandro
Carillo, an anesthesiologists.
During the operation, while Yolanda Acosta,
Catherine's mother, was staying outside the operating
room, she "noticed something very unfamiliar." The
three nurses who assisted in the operation were going
in and out of the operating room, they were not
carrying anything, but in going out of the operating
room, they were already holding something.
Yolanda asked one of the nurses if she could enter the
operating room but she was refused.
At around 6:30 p.m., Dr. Emilio Madrid went outside the
operating room and Yolanda Acosta was allowed to
enter the first door.
The appendicitis (sic) was shown to them by Dr. Madrid,
because, according to Dr. Madrid, they might be
wondering because he was going to install drainage
near the operating (sic) portion of the child.
When asked, the doctor told them the child was already
out of danger but the operation was not yet finished.

A I asked Dr. Madrid why it was like that, that the

heartbeat of my daughter is not normal.
Q And did the doctor make any reply?
A The doctor said because of the lesion of the child.
Q What else happened?
A After they have revived the heartbeat of the child,
Dr. Carillo and Dr.Madrid left.
Q Now do you remember what time was it when
Dr. Carillo stepped out?
A Only a minute after they have transferred the child to
the bed.
Q What happened later on after Dr. Carillo and
Dr. Madrid stepped out of the hospital?
A After 15 or 30 minutes has lapsed at about 7:15 or

7:30, the child had developed convulsion and stiffening

of the body.

It has also been established that the deceased was not

weighed before the administration of anesthesia on her.

Q When you observed convulsion and stiffening of the

body, did you do anything?

The operation was finished at 7:00 o'clock in the

evening and when the child was brought out from the
operating room, she was observed to be
shivering (nanginginig); her heart beat was not normal;
she was asleep and did not wake up; she was pale; and
as if she had difficulty in breathing and Dr. Emilio
Madrid suggested that she placed under oxygen tank;
that oxygen was administered to the child when she was
already in the room.

A We requested the nurse who was attending to her to

call for a doctor.

Witness Yolanda Acosta further testified that shortly

before the child was transferred from the operating
room to her room, she (witness) was requested by the
anesthesiologist to go home and get a blanket.
A portion of Yolanda Acosta's testimony on what
happened when she returned to the hospital are
reproduced hereunder as follows:

A What Dra. Pea did was call for Dr. Madrid and the
cardiologist.

Q What happened afterward?

A When I arrived in the hospital, my child was being
transferred to her bed.
Q What else happened?

Q And the nurse who was attending to the patient

called for a doctor?
A They called for Dra. Pea, their family physician.
Q What transpired afterwards?

Q Did this doctor arrived?

A Yes.
Q What transpired after the doctor arrived?
A They examined the child.
Q After they examined the child, did they inform you of
the result of the examination?

A The cardiologist was the one whom informed us after

he stepped out of the room when we followed him. The
doctor told us that she suffered severe infection which
went up to her head.
Q After you were informed of the result of his
examination, what transpired next?
A According to them, they will do their best for the
child and that they will call for Dr. Carillo.
Q Did Dr. Carillo arrived?
A At around 10:30 in the evening.
Q Did Dr. Carillo do anything when he arrived on 31
May 1981?
A When he arrived, he noticed that there were two
small bottles and big bottles of dextrose which were
hanging above the bed of the child. Then he said,
"What is this? Christmas tree or what?" He told us that
one bottle of dextrose be removed. And the big one will
remain.
Q What happened after that?
A After that we talked to Dr. Carillo and asked him how
did this happen to the child.
Q What did Dr. Carillo reply (sic) to you?
A He answered "that is nothing, the child will regain

consciousness and if the child will not regain

consciousness, I will resign (sic) as a doctor." 12
(Emphasis supplied)

When Catherine remained unconscious until noontime the next

day, a neurologist examined her and she was diagnosed as
comatose. 13 Three (3) days later, Catherine died without
regaining consciousness. 14
The Court of Appeals held that Catherine had suffered from an
overdose of, or an adverse reaction to, anesthesia, particularly
the arbitrary administration of Nubain, a pain killer, without
benefit of prior weighing of the patient's body mass, which
weight determines the dosage of Nubain which can safely be
given to a patient. 15 The Court of Appeals held that this
condition triggered off a heart attack as a post-operative
complication, depriving Catherine's brain of oxygen, leading to
the brain's hemorrhage. 16 The Court of Appeals identified such
cardiac arrest as the immediate cause of Catherine's death. 17
The Court of Appeals found criminal negligence on the part of
petitioner Dr. Carillo and his co-accused Dr. Madrid, holding
that both had failed to observe the required standard of
diligence in the examination of Catherine prior to the actual
administration of anesthesia; 18 that it was "a bit rash" on the

part of the accused Dr. Carillo "to have administered Nubain

without first weighing Catherine"; 19 and that it was an act of
negligence on the part of both doctors when, (a) they failed to
monitor Catherine's heartbeat after the operation and
(b) they left the hospital immediately after reviving Catherine's
heartbeat, depriving the latter of immediate and expertmedical
assistance when she suffered a heart attack approximately
fifteen (15) to thirty (30) minutes later. 20
Since neither petitioner nor his co-accused presented evidence
in their own behalf, the present Petition seeks to question the
soundness of the factual conclusions drawn by the Court of
Appeals, upon which the affirmance of petitioner's conviction
was based.
Close examination of the instant Petition for Review shows that
petitioner's main arguments are two-fold: (1) the Court of
Appeals "completely brushed aside" and "misapprehended"
Catherine's death certificate and biopsy report which allegedly
showed that the cause of death was a ruptured appendix, which
led to blood poisoning, 21rather than faulty anesthetic
treatment;
and (2) there was no direct evidence of record showing that
Nubain was administered to Catherine either during the
appendectomy procedure or after such operation. 22
Two (2) related issues are thus posed for the Court's
consideration. The first is whether the Court of Appeals so
drastically "misapprehended" the relevant, operative facts in
this case as to compel this Court to examine and resolve
question(s) of fact which would have a decisive significance for
the disposition of the case. The rule is too firmly settled to
require much documentation that only questions of law may be
raised before this Court in a petition for review on certiorari,
subject to certain well-known exceptions. 23 After careful
scrutiny of petitioner's contentions before us and the record of
this case, we do not believe that petitioner has shown
"misapprehension of facts" on the part of the Court of Appeals
which would require this Court to overturn the judgment
reached by the former.
The second issue is whether or not the findings of fact of the
Court of Appeals adequately support the conclusion that
petitioner Dr. Carillo was, along with Dr. Madrid, guilty of
simple negligence which resulted in homicide. Our review of
the record leads us to an affirmative answer.
Petitioner contends that the Court of Appeals seriously erred in
finding that an overdose of, or an allergic reaction to, the
anesthetic drug Nubain had led to the death of Catherine
Acosta and that the true cause of Catherine's death was that set
out in the death certificate of Catherine: "Septicemia (or blood
poisoning) due to perforated appendix with peritonitis." 24 The
concept of causation in general, and the cause of death in
human beings in particular, are complex and difficult notions.
What is fairly clear is that death, understood as a physical
condition involving cessation of vital signs in the brain and
heart, is preceded by a series of physiological events, any one of
which events can, with equal cogency, be described as a "cause
of death". The Court of Appeals found that an overdose of, or an

adverse reaction to, Nubain, an anesthetic or

pain-killing drug the appropriate dose of which depends on the
body weight or mass of the patient, had generated or triggered
off cardiac arrest, which in
turn led to lack of oxygen in Catherine's brain, which then
brought about hemorrhaging in the brain. Vital activity in the
brain thereupon ceased. The medical evidence presented at the
trial was quite consistent with the findings of the Court of
Appeals which concluded that cardiac arrest was the cause of
Catherine's death. 25
For his part, petitioner insists that cardiac arrest is not the only
cause of oxygen-starvation of the brain, that septicemia with
peritonitis or severe infection which had "gone up to the head"
of Catherine was an equally efficient cause of deprivation of the
brain of oxygen and hence of brain hemorrhage. The medical
testimony of the expert witnesses for the prosecution on which
petitioner relies is also consistent with petitioner's theory that
septicemia with peritonitis was, or at least could have been, the
cause of Catherine's death. 26
Indeed, it appears to the Court that there was no medical proof
submitted to the trial court to show that one or the other
"cause" was necessarily an exclusive cause of death in the case
of Catherine Acosta; that an overdose or allergic reaction to
Nubain could not have combined with septicemia and
peritonitis in bringing about Catherine's death.
What is of critical importance for present purposes is not so
much the identification of the "true cause" or "real cause" of
Catherine's death but rather the set of circumstances which
both the trial court and the Court of Appeals found constituted
simple (as distinguished from reckless) negligence on the part
of the two accused Dr. Madrid and Dr. Carillo leading to the
death of Catherine.
When the patient was wheeled out of the operating room after
completion of surgery, she manifested signs of medical
instability (i.e., shivering, paleness, irregular breathing and weak
heart beat). 27 She was not brought to a properly equipped
recovery room, or intensive care until which the hospital
lacked. 28 Such facilities and their professional staffs, of which
an anesthetist is commonly a part, are essential for providing
close observation and patient care while a post-surgery patient
is recovering from the effects of anesthesia and while the
normal protective mechanisms are still dull or
obtunded. 29 Instead, the patient was merely brought to her
assigned hospital bed and was provided oxygen on the
instructions of Dr. Madrid then "revived" her heartbeat. 30 Both
doctors then left their patient and the hospital; approximately
fifteen minutes later, she suffered convulsions and cardiac
arrest. 31
The conduct of Dr. Madrid and of the petitioner constituted
inadequate care of their patient in view of her vulnerable
condition. Both doctors failed to appreciate the serious
condition of their patient whose adverse physical signs were
quite manifest right after surgery. And after reviving her
heartbeat, both doctors failed to monitor their patient closely
or extend further medical care to her; such conduct was

especially necessary in view of the inadequate,

post-operative facilities of the hospital. We do not, of course,
seek to hold petitioner responsible for the inadequate facilities
of the Baclaran General Hospital. We consider, however, that
the inadequate nature of those facilities did impose a somewhat
higher standard of professional diligence upon the accused
surgeon and anesthetist personally than would have been called
for in a modern fully-equipped hospital.
While Dr. Madrid and a cardiologist were containing the
patient's convulsions, and after the latter had diagnosed that
infection had reached the patient's head, these two (2)
apparently after consultation, decided to call-in the
petitioner. 32 There is here a strong implication that the patient's
post-operative condition must have been considered by the two
(2) doctors as in some way related to the anesthetic treatment
she had received from the petitioner either during or after the
surgical procedure.
Once summoned, petitioner anesthesiologist could not be
readily found. When he finally appeared at 10:30 in the
evening, he was evidently in a bad temper, commenting
critically on the dextrose bottles before ordering their
removal. 33 This circumstance indicated he was not disposed to
attend to this unexpected call, in violation of the canons of his
profession that as a physician, he should serve the interest of his
patient "with the greatest of solicitude, giving them always his
best talent and skill." 34 Indeed, when petitioner finally saw his
patient, he offered the unprofessional bluster to the parents of
Catherine that he would resign if the patient will not regain
consciousness. 35 The canons of medical ethics require a
physician to "attend to his patients faithfully and
conscientiously." He should secure for them all possible benefits
that may depend upon his professional skill and care. As the sole
tribunal to adjudge the physician's failure to fulfill his obligation
to his patient is, in most cases, his own conscience, violation of
this rule on his part is "discreditable and inexcusable". 36
Nubain was an experimental drug for anesthesia and postoperative pain and the medical literature required that a
patient be weighed first before it is administered and warned
that there was no (or inadequate) experience relating to the
administration thereof to a patient less that eighteen (18) ears
of age. 37 Yet, the doctor's order sheet (Exhibit "C")
did not contain this precaution but instead directed a reader to
apply the drug only when warranted by the
circumstances. 38 During the offer of Exhibit "C" by the
prosecution, Dr. Madrid admitted that this prescription, which
was unsigned, was made in his own handwriting. 39 It must be
observed that the instruction was open-ended in that some
other individual still had to determine if circumstances existed
warranting administration of the drug to the patient. The
document thus indicated the abdication of medical
responsibility on an extremely critical matter.
Since petitioner anesthesiologist
entered subsequent prescriptions or orders in the same order
sheet, which were signed by him, at 7:15 p.m. on the same

evening of 31 May 1981, he was in a position to appreciate the

dangers inherent in the prior prescription, which was within his
(petitioner's) area of specialization, and to order measures to

correct this anomaly and protect his patient's well-being. So far

as the condition of the evidence shows, he failed to do so. In

sum, only a low level of diligence was exhibited by petitioner
and Dr. Madrid in the prescription of medication for their
patient.
As noted earlier, petitioner relied heavily in this proceeding on
the testimony on cross-examination of the expert witnesses for
the prosecution to show that blood poisoning resulting from a
ruptured appendix could also be responsible for the patient's
death.
No suggestion has been made that the rupture of the patient's
occurred prior to surgery. After her blood sample was
examined, the patient was merely diagnosed as a case of
appendicitis, without further elaboration. 40 Nointensive
preoperative preparations, like the immediate administration of
antibiotics, was thereafter undertaken on the patient. This is a
standard procedure for patients who are, after being diagnosed,
suspected of suffering from a perforated appendix and
consequent peritonitis. 41 The mother also testified that
petitioner anesthesiologist merely injected a drug, "preanesthesia" intended to put the patient to sleep, into the
container of fluids being administered to her daughter
intravenously at her room, prior to surgery. 42 We note further
that the surgeon Dr. Madrid was forty-five minutes late in
arriving at the operating theater. 43 Considering that delay in
treatment of appendicitis increases the morbidity of the
patient,44 Dr. Madrid's conduct can only be explained by a preoperative diagnosis on his part that the condition of
appendicitis wasnot yet attended by complications (i.e., a
ruptured appendix and peritonitis).
The above circumstances do strongly indicate that the rupture
of the patient's appendix occurred during the appendectomy
procedure, that is, at a time and place the operating room
where the two (2) accused were in full control of the situation
and could determine decisively what needed to be done in
respect of the patient. 45This circumstance must be considered
in conjunction with other related circumstances which the
prosecution had proven: that the patient was ambulatory when
brought to the operating room; 46 that she left the operating
room two (2) hours later in obviously serious condition; and that
an appendectomy accompanied or followed by sustained
antibiotic treatment is a fairly common and generally accepted
medical procedure for dealing with ruptured appendix and
peritonitis, 47 a fact of which judicial note may be taken.
As early as in People v. Vistan, 48 the Court defined simple
negligence, penalized under what is now Article 365 of the
Revised Penal Code, as "a mere lack of prevision in a situation
where either the threatened harm is
not immediate or the danger not openly visible." Put in a slightly
different way, the gravamen of the offense of simple negligence
is the failure to exercise the diligence necessitated or called for
the situation which was not immediately
life-destructive but which culminated, in the present case, in the
death of a human being three (3) days later. Such failure to
exercise the necessary degree of care and diligence is a
negative ingredient of the offense charged. The rule in such
cases is that while the prosecution must prove the negative

ingredient of the offense, it needs only to present the best

evidence procurable under the circumstances, in order to shift
the burden of disproving or countering the proof of the
negative ingredient to the accused, provided that such initial
evidence establishes at least on a prima facie basis the guilt of
the accused. 49 This rule is particularly applicable where the
negative ingredient of the offense is of such a nature or
character as, under the circumstances, to be specially within the
knowledge or control of the accused. 50 In the instant case, the
Court is bound to observe that the events which occurred
during the surgical procedure (including whether or not Nubain
had in fact been administered as an anesthesia immediately
before or during the surgery) were peculiarly within the
knowledge and control of Dr. Carillo and Dr. Madrid. It was,
therefore, incumbent upon the two (2) accused to overturn
the prima faciecase which the prosecution had established, by
reciting the measures which they had actually taken to prevent
or to counter the obviously serious condition of Catherine
Acosta which was evident right after surgery. This they failed or
refused to do so.
Still another circumstance of which account must be taken is
that both petitioner and Dr. Madrid failed to inform the parents
of their minor patient of the nature of her illness, or to explain
to them either during the surgery
(if feasible) or at any time after the surgery, the events which
comprised the dramatic deterioration of her condition
immediately after surgery as compared with her pre-surgery
condition. To give a truthful explanation to the parents was a
duty imposed upon them by the canons of their
profession. 51 Petitioner should have explained to Catherine's
parents the actual circumstances surrounding Catherine's death,
how, in other words, a simple appendectomy procedure upon
an ambulatory patient could have led to such fatal
consequences.
By way of resume, in the case at bar, we consider that the chain
of circumstances above noted, namely: (1) the failure of
petitioner and Dr. Madrid to appreciate the serious postsurgery condition of their patient and to monitor her condition
and provide close patient care to her; (2) the summons of
petitioner by Dr. Madrid and the cardiologist after the patient's
heart attack on the very evening that the surgery was
completed; (3) the low level of care and diligence exhibited by
petitioner in failing to correct Dr. Madrid's prescription of
Nubain for post-operative pain; (4) the extraordinary failure or
refusal of petitioner and Dr. Madrid to inform the parents of
Catherine Acosta of her true condition after surgery, in
disregard of the requirements of the Code of Medical Ethics;
and (5) the failure of petitioner and Dr. Madrid to prove that
they had in fact exercised the necessary and appropriate degree
of care and diligence to prevent the sudden decline in the
condition of Catherine Acosta and her death three (3) days
later, leads the Court to the conclusion, with moral certainty,
that petitioner and Dr. Madrid were guilty of simple negligence
resulting in homicide.
In addition to the main arguments raised by petitioner earlier,
he also raised an ancillary, constitutional claim of denial of due
process. He contends that he was deprived of his right to have
competent representation at trial, and to have his cause

adequately heard, because his counsel of record, Atty. Jose B.

Puerto, was "incompetent" and exhibited "gross negligence" by
manifesting an intent to file a demurrer to the evidence, in
failing to present evidence in his behalf and in omitting to file a
defense memorandum for the benefit of
Judge Yuzon, after the latter took over the case at the end of
trial and before the Judge rendered his decision. 52Petitioner
submits he is entitled to a new trial. 53
These contentions do not persuade. An examination of the
record indicates that Atty. Puerto represented petitioner during
trial with reasonable competence. Except for the two hearing
sessions when witnesses Domingo Acosta was cross-examined
and recross-examined by Atty. Puerto, petitioner was present
during all the sessions when the other prosecution witnesses
were presented and during which Atty. Puerto extensively crossexamined them in behalf of petitioner and Dr. Madrid. This
counsel elicited from the two (2) expert witnesses for the
prosecution testimony favorable to petitioner and which was
relied upon by the latter in this proceeding. 54 The record
further indicates that if petitioner indeed entertained
substantial doubts about the capability of Atty. Puerto, he could
have easily terminated the services of that counsel and retained
a new one, or sought from the trial court the appointment of
counsel
de oficio, during the ample opportunity given from the time
Atty. Puerto manifested his intent to file a demurrer on 16
October 1985, to the submission of the case for decision on 25
June 1986 and before the promulgation of judgment on 19
September 1986. 55 During all this time, petitioner could have
obtained leave of court to present evidence in his behalf in lieu
of a demurrer, or to submit a memorandum for the defense.
After promulgation of the judgment of conviction, petitioner
did not seek a new trial, but permitted Atty. Puerto to obtain
leave from the trial court to continue on bail during the
pendency of the proceedings before the Court of
Appeals. 56 Indeed, petitioner replaced
Atty. Puerto as counsel only upon institution of the present
petition. 57
Petitioner's constitutional objection is plainly an afterthought.
WHEREFORE, the Decision of the Court of Appeals dated 28
November 1988 is hereby AFFIRMED, subject only to the
modification that the indemnity for the death of Catherine
Acosta is hereby increased to P50,000.00, in line with current
jurisprudence. 58 SO ORDERED.