Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23052 January 29, 1968

CITY OF MANILA, petitioner,

vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.

City Fiscal Manuel T. Reyes for petitioner.

Sevilla, Daza and Associates for respondents.

CONCEPCION, C.J.:

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P.
Burgos Avenue, Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down
town. After waiting for about five minutes, he managed to hail a jeepney that came along to a stop. As he
stepped down from the curb to board the jeepney, and took a few steps, he fell inside an uncovered and
unlighted catch basin or manhole on P. Burgos Avenue. Due to the fall, his head hit the rim of the
manhole breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood
flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out of the
manhole. One of them brought Teotico to the Philippine General Hospital, where his injuries were treated,
after which he was taken home. In addition to the lacerated wound in his left upper eyelid, Teotico
suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart from an
abrasion on the right infra-patella region. These injuries and the allergic eruption caused by anti-tetanus
injections administered to him in the hospital, required further medical treatment by a private practitioner
who charged therefor P1,400.00.

As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila, a
complaint which was, subsequently, amended for damages against the City of Manila, its mayor,
city engineer, city health officer, city treasurer and chief of police. As stated in the decision of the trial
court, and quoted with approval by the Court of Appeals,

At the time of the incident, plaintiff was a practicing public accountant, a businessman and a
professor at the University of the East. He held responsible positions in various business firms
like the Philippine Merchandising Co., the A.U. Valencia and Co., the Silver Swan
Manufacturing Company and the Sincere Packing Corporation. He was also associated with
several civic organizations such as the Wack Wack Golf Club, the Chamber of Commerce of the
Philippines, Y's Men Club of Manila and the Knights of Rizal. As a result of the incident,
plaintiff was prevented from engaging in his customary occupation for twenty days. Plaintiff has
lost a daily income of about P50.00 during his incapacity to work. Because of the incident, he was
subjected to humiliation and ridicule by his business associates and friends. During the period of
his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children
since he was their only support. Due to the filing of this case, plaintiff has obligated himself to
pay his counsel the sum of P2,000.00.

On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm
Drain Section, Office of the City Engineer of Manila, received a report of the uncovered
condition of a catchbasin at the corner of P. Burgos and Old Luneta Streets, Manila, on January
24, 1958, but the same was covered on the same day (Exhibit 4); that again the iron cover of the
same catch basin was reported missing on January 30, 1958, but the said cover was replaced the
next day (Exhibit 5); that the Office of the City Engineer never received any report to the effect
that the catchbasin in question was not covered between January 25 and 29, 1968; that it has
always been a policy of the said office, which is charged with the duty of installation, repair and
care of storm drains in the City of Manila, that whenever a report is received from whatever
source of the loss of a catchbasin cover, the matter is immediately attended to, either by
 immediately replacing the missing cover or covering the catchbasin with steel matting that
because of the lucrative scrap iron business then prevailing, stealing of iron catchbasin covers
was rampant; that the Office of the City Engineer has filed complaints in court resulting from
theft of said iron covers; that in order to prevent such thefts, the city government has changed the
position and layout of catchbasins in the City by constructing them under the sidewalks with
concrete cement covers and openings on the side of the gutter; and that these changes had been
undertaken by the city from time to time whenever funds were available.

After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision
sustaining the theory of the defendants and dismissing the amended complaint, without costs.

On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the
City of Manila is concerned, which was sentenced to pay damages in the aggregate sum of
P6,750.00. 1 Hence, this appeal by the City of Manila.

The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act
No. 409 (Charter of the City of Manila) reading:

The city shall not be liable or held for damages or injuries to persons or property arising from the
failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of
this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board,
or other officers while enforcing or attempting to enforce said provisions.

or by Article 2189 of the Civil Code of the Philippines which provides:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries
suffered by, any person by reason of defective conditions of road, streets, bridges, public
buildings, and other public works under their control or supervision.

Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a
special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law,
applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as
its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general
legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of Republic Act
409 establishes a general rule regulating the liability of the City of Manila for: "damages or injury to
persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or
any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers
while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil
Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for
damages for the death of, or injury suffered by any person by reason" specifically "of the defective
condition of roads, streets, bridges, public buildings, and other-public works under their control or
supervision." In other words, said section 4 refers to liability arising from negligence, in general,
regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in
particular. Since the present action is based upon the alleged defective condition of a road, said Article
2189 is decisive thereon.

It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident
involving him took place in a national highway; and 2) because the City of Manila has not been negligent
in connection therewith.

As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the
City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries
were due to the defective condition of a street which is "under the supervision and control" of the City. In
its answer to the amended complaint, the City, in turn, alleged that "the streets aforementioned were and
have been constantly kept in good condition and regularly inspected and the storm drains and manholes
thereof covered by the defendant City and the officers concerned" who "have been ever vigilant and
zealous in the performance of their respective functions and duties as imposed upon them by law." Thus,
the City had, in effect, admitted that P. Burgos Avenue was and is under its control and supervision.
Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first time,
in its motion for reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore,
a question of fact, which had not been put in issue in the trial court, and cannot be set up, for the first
time, on appeal, much less after the rendition of the decision of the appellate court, in a motion for the
reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to
attach that the defective roads or streets belong to the province, city or municipality from which
responsibility is exacted. What said article requires is that the province, city or municipality have either
"control or supervision" over said street or road. Even if P. Burgos Avenue were, therefore, a national
highway, this circumstance would not necessarily detract from its "control or supervision" by the City of
Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. The Municipal Board shall have the following legislative powers:

xxx xxx xxx

(x) Subject to the provisions of existing law to provide for the laying out,
construction and improvement, and to regulate the use of streets, avenues, alleys, sidewalks,
wharves, piers, parks, cemeteries, and other public places; to provide for lighting, cleaning, and
sprinkling of streets and public places; . . . to provide for the inspection of, fix the license fees for
and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the
building and repair of tunnels, sewers, and drains, and all structures in and under the same and
the erecting of poles and the stringing of wires therein; to provide for and regulate cross-works,
curbs, and gutters therein, . . . to regulate traffic and sales upon the streets and other public
places; to provide for the abatement of nuisances in the same and punish the authors or owners
thereof; to provide for the construction and maintenance, and regulate the use, of bridges,
viaducts and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and other
amusements which may annoy persons using the streets and public places, or frighten horses or
other animals; to regulate the speed of horses and other animals, motor and other vehicles, cars,
and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and
locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and
compel any such railroad to raise or lower its tracks to conform to such provisions or changes;
and to require railroad companies to fence their property, or any part thereof, to provide suitable
protection against injury to persons or property, and to construct and repair ditches, drains,
sewers, and culverts along and under their tracks, so that the natural drainage of the streets and
adjacent property shall not be obstructed.

This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order
No. 113, dated May 2, 1955, upon which the City relies. Said Act governs the disposition or appropriation
of the highway funds and the giving of aid to provinces, chartered cities and municipalities in the
construction of roads and streets within their respective boundaries, and Executive Order No. 113 merely
implements the provisions of said Republic Act No. 917, concerning the disposition and appropriation of
the highway funds. Moreover, it provides that "the construction, maintenance and improvement of
national primary, national secondary and national aid provincial and city roads shall be accomplished by
the Highway District Engineers and Highway City Engineers under the supervision of the Commissioner
of Public Highways and shall be financed from such appropriations as may be authorized by the Republic
of the Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision of
the City of Manila and whether the latter is guilty of negligence, in connection with the maintenance of
said road, which were decided by the Court of Appeals in the affirmative, is one of fact, and the findings
of said Court thereon are not subject to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City
of Manila. It is so ordered.1wph1.t
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 61516 March 21, 1989

FLORENTINA A. GUILATCO, petitioner,

vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.

Nolan R. Evangelista for petitioner.

The City Legal Officer for respondents.

SARMIENTO, J.:

In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco, the following
judgment was rendered against the respondent City of Dagupan:

xxx

(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of
P 15,924 (namely P8,054.00 as hospital, medical and other expenses [Exhs. H to H-60], P
7,420.00 as lost income for one (1) year [Exh. F] and P 450.00 as bonus). P 150,000.00 as
moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees,
and litigation expenses, plus costs and to appropriate through its Sangguniang
Panglunsod (City Council) said amounts for said purpose;

(2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G. Tangco;
and

(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr.
Alfredo G. Tangco, for lack of merit. 2

The facts found by the trial court are as follows: 3

It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court
Interpreter of Branch III, CFI--Dagupan City, while she was about to board a motorized
tricycle at a sidewalk located at Perez Blvd. (a National Road, under the control and
supervision of the City of Dagupan) accidentally fell into a manhole located on said
sidewalk, thereby causing her right leg to be fractured. As a result thereof, she had to be
hospitalized, operated on, confined, at first at the Pangasinan Provincial Hospital, from
July 25 to August 3, 1978 (or for a period of 16 days). She also incurred hospitalization,
medication and other expenses to the tune of P 8,053.65 (Exh. H to H-60) or a total of P
10,000.00 in all, as other receipts were either lost or misplaced; during the period of her
confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only
on her right leg which was fractured but also on all parts of her body; the pain has
persisted even after her discharge from the Medical City General Hospital on October 9,
1978, to the present. Despite her discharge from the Hospital plaintiff is presently still
wearing crutches and the Court has actually observed that she has difficulty in
locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has
not yet reported for duty as court interpreter, as she has difficulty of locomotion in going
up the stairs of her office, located near the city hall in Dagupan City. She earns at least P
720.00 a month consisting of her monthly salary and other means of income, but since
July 25, 1978 up to the present she has been deprived of said income as she has already
consumed her accrued leaves in the government service. She has lost several pounds as a
result of the accident and she is no longer her former jovial self, she has been unable to
 perform her religious, social, and other activities which she used to do prior to the
incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr.
Antonio Sison of the Medical City General Hospital in Mandaluyong Rizal (Exh. I; see
also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any doubt the extent of
the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other
hand, Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff
regarding the mishap and they have confirmed the existence of the manhole (Exhs. A, B,
C and sub-exhibits) on the sidewalk along Perez Blvd., at the time of the incident on July
25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole
about 2 ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see
Exhs. D and D-1).

Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio
Highway Engineer, City Engineer of the Public Works and Building Official for Dagupan
City, admitted the existence of said manhole along the sidewalk in Perez Blvd.,
admittedly a National Road in front of the Luzon Colleges. He also admitted that said
manhole (there are at least 11 in all in Perez Blvd.) is owned by the National Government
and the sidewalk on which they are found along Perez Blvd. are also owned by the
National Government. But as City Engineer of Dagupan City, he supervises the
maintenance of said manholes or drainage system and sees to it that they are properly
covered, and the job is specifically done by his subordinates, Mr. Santiago de Vera
(Maintenance Foreman) and Engr. Ernesto Solermo also a maintenance Engineer. In his
answer defendant Tangco expressly admitted in par. 7-1 thereof, that in his capacity as
ex-officio Highway Engineer for Dagupan City he exercises supervision and control over
National roads, including the Perez Blvd. where the incident happened.

On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower court findings on
the ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had
"control or supervision" over Perez Boulevard. 5

The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is
not under the control or supervision of the City of Dagupan. Hence, no liability should attach to the city.
It submits that it is actually the Ministry of Public Highways that has control or supervision through the
Highway Engineer which, by mere coincidence, is held concurrently by the same person who is also the
City Engineer of Dagupan.

After examination of the findings and conclusions of the trial court and those of the appellate court, as
well as the arguments presented by the parties, we agree with those of the trial court and of the petitioner.
Hence, we grant the petition.

In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue:
whether or not control or supervision over a national road by the City of Dagupan exists, in effect binding
the city to answer for damages in accordance with article 2189 of the Civil Code.

The liability of public corporations for damages arising from injuries suffered by pedestrians from the
defective condition of roads is expressed in the Civil Code as follows:

Article 2189. Provinces, cities and municipalities shall be liable for damages for the death
of, or injuries suffered by, any person by reason of the defective condition of roads,
streets, bridges, public buildings, and other public works under their control or
supervision.

It is not even necessary for the defective road or street to belong to the province, city or municipality for
liability to attach. The article only requires that either control or supervision is exercised over the
defective road or street. 6

In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised
through the City Engineer who has the following duties:
 Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city
engineer, who shall be in charge of the department of Engineering and Public Works. He
shall receive a salary of not exceeding three thousand pesos per annum. He shall have the
following duties:

xxx

(j) He shall have the care and custody of the public system of waterworks and sewers,
and all sources of water supply, and shall control, maintain and regulate the use of the
same, in accordance with the ordinance relating thereto; shall inspect and regulate the use
of all private systems for supplying water to the city and its inhabitants, and all private
sewers, and their connection with the public sewer system.

xxx

The same charter of Dagupan also provides that the laying out, construction and improvement of streets,
avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal
Board . 7Thus the charter clearly indicates that the city indeed has supervision and control over the
sidewalk where the open drainage hole is located.

The express provision in the charter holding the city not liable for damages or injuries sustained by
persons or property due to the failure of any city officer to enforce the provisions of the charter, can not
be used to exempt the city, as in the case at bar.8

The charter only lays down general rules regulating the liability of the city. On the other hand article
2189 appliesin particular to the liability arising from "defective streets, public buildings and other public
works." 9

The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said
road. But the city can not be excused from liability by the argument that the duty of the City Engineer to
supervise or control the said provincial road belongs more to his functions as an ex-officio Highway
Engineer of the Ministry of Public Highway than as a city officer. This is because while he is entitled to
an honorarium from the Ministry of Public Highways, his salary from the city government substantially
exceeds the honorarium.

We do not agree.

Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio Highway
Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as
Building Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from
Dagupan City; P 200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public
Works and P 500.00 by virtue of P.D. 1096, respectively." 10This function of supervision over streets,
public buildings, and other public works pertaining to the City Engineer is coursed through a
Maintenance Foreman and a Maintenance Engineer.11 Although these last two officials are employees of
the National Government, they are detailed with the City of Dagupan and hence receive instruction and
supervision from the city through the City Engineer.

There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works
in question. Hence, the liability of the city to the petitioner under article 2198 of the Civil Code is clear.

Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should be
reduced to the proven expenses of P 8,053.65 only. The trial court should not have rounded off the
amount. In determining actual damages, the court can not rely on "speculation, conjecture or guess work"
as to the amount. Without the actual proof of loss, the award of actual damages becomes erroneous. 12

On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the
determination of the amount is discretionary on the court.13 Though incapable of pecuniary estimation,
moral damages are in the nature of an award to compensate the claimant for actual injury suffered but
which for some reason can not be proven. However, in awarding moral damages, the following should be
taken into consideration:
 (1) First, the proximate cause of the injury must be the claimee's acts.14

(2) Second, there must be compensatory or actual damages as satisfactory proof of the
factual basis for damages.15

(3) Third, the award of moral damages must be predicated on any of the cases
enumerated in the Civil Code. 16

In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven.
Witnesses from the petitioner's place of work testified to the degeneration in her disposition-from being
jovial to depressed. She refrained from attending social and civic activities.17

Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent
and disabled her only during her treatment which lasted for one year. Though evidence of moral loss and
anguish existed to warrant the award of damages,18 the moderating hand of the law is called for. The
Court has time and again called attention to the reprehensible propensity of trial judges to award damages
without basis,19 resulting in exhorbitant amounts.20

Although the assessment of the amount is better left to the discretion of the trial court 21 under preceding
jurisprudence, the amount of moral damages should be reduced to P 20,000.00.

As for the award of exemplary damages, the trial court correctly pointed out the basis:

To serve as an example for the public good, it is high time that the Court, through this
case, should serve warning to the city or cities concerned to be more conscious of their
duty and responsibility to their constituents, especially when they are engaged in
construction work or when there are manholes on their sidewalks or streets which are
uncovered, to immediately cover the same, in order to minimize or prevent accidents to
the poor pedestrians.22

Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more
important than the manner in which the work is carried out. Because of this obsession for showing off,
such trivial details as misplaced flower pots betray the careless execution of the projects, causing public
inconvenience and inviting accidents.

Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the
petitioner was able to secure an order for garnishment of the funds of the City deposited with the
Philippine National Bank, from the then presiding judge, Hon. Willelmo Fortun. This order for
garnishment was revoked subsequently by the succeeding presiding judge, Hon. Romeo D. Magat, and
became the basis for the petitioner's motion for reconsideration which was also denied. 23

We rule that the execution of the judgment of the trial court pending appeal was premature. We do not
find any good reason to justify the issuance of an order of execution even before the expiration of the time
to appeal .24

WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court
of Appeals are hereby REVERSED and SET ASIDE and the decision of the trial court, dated March 12,
1979 and amended on March 13, 1979, is hereby REINSTATED with the indicated modifications as
regards the amounts awarded:

(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the
amount of P 15,924 (namely P 8,054.00 as hospital, medical and other expenses; P
7,420.00 as lost income for one (1) year and P 450.00 as bonus); P 20,000.00 as moral
damages and P 10,000.00 as exemplary damages.

The attorney's fees of P 3,000.00 remain the same.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of
the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and
DRA. PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell the difference between life and
death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents
liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh.
"A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she
has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a stone
in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of examinations
which included blood and urine tests (Exhs. "A" and "C") which indicated she was fit for
surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7),
she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June 10,
1985. They agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should
undergo a "cholecystectomy" operation after examining the documents (findings from the
Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E.
Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in
turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee
of P16,000.00, which was to include the anesthesiologist's fee and which was to be paid
after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p.
11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for
the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean
of the College of Nursing at the Capitol Medical Center, was also there for moral support.
She reiterated her previous request for Herminda to be with her even during the
operation. After praying, she was given injections. Her hands were held by Herminda as
they went down from her room to the operating room (TSN, January 13, 1988, pp. 9-11).
Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other
defendant, who was to administer anesthesia. Although not a member of the hospital
staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them. Herminda was
allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who
was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former
replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the
operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told Rogelio about what the patient said (id., p. 15).
Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the
arrival of the doctor" even as he did his best to find somebody who will allow him to pull
out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also
thought of the feeling of his wife, who was inside the operating room waiting for the
doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he
(Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking
to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse
remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he
went down to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that "Dr. Hosaka is already here." She then saw people
inside the operating room "moving, doing this and that, [and] preparing the patient for the
operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez
say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id.,
p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr.
Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying
to intubate the patient. The patient's nailbed became bluish and the patient was placed in
a trendelenburg position a position where the head of the patient is placed in a position
lower than her feet which is an indication that there is a decrease of blood supply to the
patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating
room, and she told Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.).
Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
 Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors rushing
towards the operating room. When informed by Herminda Cruz that something wrong
was happening, he told her (Herminda) to be back with the patient inside the operating
room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to what
was told to him, Rogelio reminded the doctor that the condition of his wife would not
have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October
19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened
to the patient. The doctors explained that the patient had bronchospasm (TSN, November
15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose condition. She cannot do anything. She cannot
move any part of her body. She cannot see or hear. She is living on mechanical means.
She suffered brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing constant medical attention,
with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering
from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging negligence in the management and care of
Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the 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 Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this Court
finds and so holds that defendants are liable to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in the performance of their duty to plaintiff-
patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after
 she committed a mistake in intubating [the] patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in trendelenburg position, because of the decrease
of blood supply to the patient's brain. The evidence further shows that the hapless patient
suffered brain damage because of the absence of oxygen in her (patient's) brain for
approximately four to five minutes which, in turn, caused the patient to become
comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part of
his obligation to provide the patient a good anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room. Moreover,
the hospital is liable for failing through its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-patient. For if
the patient was properly intubated as claimed by them, the patient would not have
become comatose. And, the fact that another anesthesiologist was called to try to intubate
the patient after her (the patient's) nailbed turned bluish, belie their claim. Furthermore,
the defendants should have rescheduled the operation to a later date. This, they should
have done, if defendants acted with due care and prudence as the patient's case was an
elective, not an emergency case.

xxx xxx xxx

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

plaintiffs and against the defendants. Accordingly, the latter are ordered to pay, jointly
and severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff

Erlinda Ramos reckoned from November 15, 1985 or in the total sum of
P632,000.00 as of April 15, 1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum
of P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

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

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED,
and the complaint below against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar
as appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received
by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the
appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration
of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed
with the appellate court a motion for extension of time to file a motion for reconsideration. The motion
for reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading on the
assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals
had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court
still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for
reconsideration had already expired, to wit:

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

Even assuming admissibility of the Motion for the Reconsideration, but after considering
the Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of
the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May
1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS

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

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE

THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA
RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of
the petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In
their
Comment, 12 private respondents contend that the petition should not be given due course since the
motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly
dismissed by the appellate court for having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate
court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of
the decision of the 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 party's
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 believed
that the receipt of the former should be considered in determining the timeliness of the filing of the
present petition. Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine
of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation
to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself."
The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima faciecase, and present a question of fact for defendant to meet with an
explanation. 13 Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in ordinary course of things does
not happen if those who have its management or control use proper care, it affords reasonable evidence,
in the absence of explanation by the defendant, that the accident arose from or was caused by the
defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence. 15 It is grounded in the superior logic
of ordinary human experience and on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur 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. 17 Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural
of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing
specific proof of negligence. 19 In other words, mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the

absence of someone's negligence;

2. It is caused by an instrumentality within the exclusive control of the

defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff

responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. 22Such element of control must be shown to be within the dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation
where it is applicable, and must establish that the essential elements of the doctrine were present in a
particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician
has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine
of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with
because the injury itself provides the proof of negligence. 27 The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly within the domain of medical science,
and not to matters that are within the common knowledge of mankind which may be testified to by
anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of
skill and care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. 29 Hence, in cases where theres ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where
the court from its fund of common knowledge can determine the proper standard of care. 30 Where
common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission complained of and the injury sustained while under
the custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the
removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, 36 among others.

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

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in
applying theres ipsa loquitur stated:

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

Here the plaintiff could not have been guilty of contributory negligence because he was
under the influence of anesthetics and unconscious, and the circumstances are such that
the true explanation of event is more accessible to the defendants than to the plaintiff for
they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause
of action is stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on
her gall bladder. On that fateful day she delivered her person over to the care, custody and control of
private respondents who exercised complete and exclusive control over her. At the time of submission,
Erlinda was neurologically sound and, except for a few minor discomforts, was likewise physically fit in
mind and body. However, during the administration of anesthesia and prior to the performance of
cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she
went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage,
which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including
the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-
in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence because she
was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient. Moreover, the liability of the physicians and
the hospital in this case is not predicated upon an alleged failure to secure the desired results of an
operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to
any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose
condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court
of Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of
Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the
wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the care and management of
Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was
attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic event
occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the

patient?

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

Q: Do you know what happened to that intubation process administered

by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

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

xxx xxx xxx

 ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

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

A: I notice (sic) some bluish discoloration on the nailbeds of the left

hand where I was at.

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

A: I saw him approaching the patient during that time.

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

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

Calderon.

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

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

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

xxx xxx xxx

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

A: As far as I know, when a patient is in that position, there is a decrease

of blood supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is
not taught as part of nursing procedures and techniques. Indeed, we take judicial notice of
the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully
capable of determining whether or not a patient is properly intubated, witness Herminda
Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13).
More importantly, there is no evidence that she ever auscultated the patient or that she
conducted any type of examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and other organs. Thus, witness
Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee
 Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which are
observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary
for the proof of negligence in non-technical matters or those of which an ordinary person may be
expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert
testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so
common, that even an ordinary person can tell if it was administered properly. As such, it would not be
too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require
a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully
capable of determining whether or not the intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the
FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol
Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the same were
delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that
she was able to demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

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

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

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

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

Q: So, you found some difficulty in inserting the tube?

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

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a person) 52 making it harder to locate and, since Erlinda
is obese and has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to
the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it
appears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed
to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patient's medical records and visits with the patient,
traditionally, the day before elective surgery. 53 It includes taking the patient's medical history, review of
current drug therapy, physical examination and interpretation of laboratory data. 54 The physical
examination performed by the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway normally
involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental
distance. 56 Thus, physical characteristics of the patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the need arises, as when initial assessment indicates
possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination
of the patient's airway would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of
the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of
the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's centuries-
old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her
negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez
tried to muddle the difference between an elective surgery and an emergency surgery just so her failure to
perform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the
patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative

procedure of the anesthesiologist and in my case, with elective cases and
normal cardio-pulmonary clearance like that, I usually don't do it except
on emergency and on cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for
the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient
only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside to do a proper interview and clinical evaluation.
There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia.
However, she never saw the patient at the bedside. She herself admitted that she had seen petitioner only
in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma
was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug reaction to the 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).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on patients, but only from reading certain references, to
wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion

to use pentothal as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to

intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what

you have read from books and not by your own personal application of
the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

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

appendectomy.

Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal here with
medical authority?
 A: No. That is why I used references to support my claims. 61

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

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject or by
practical experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above
standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly,
apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without
supporting medical proof, and against the weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to advanced in order to
absolve them of any and all responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred. 64 An
injury or damage is proximately caused by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial part in bringing about or actually
causing the injury or damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately, her
comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place
was an esophageal intubation. During intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the
esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been observed during the first intubation
suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her
lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen
became apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on Erlinda and this one was successfully done.
We do not think so. No evidence exists on record, beyond private respondents' bare claims, which
supports the contention that the second intubation was successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen
delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after
the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private
respondents insist, that the second intubation was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial
court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for
about four to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing
a thorough evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent
Dra. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this
unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative
evaluation, respondent physician could have been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patient's neck and oral area, defects which would have
been easily overcome by a prior knowledge of those variations together with a change in technique. 71 In
other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation,
would have had little difficulty going around the short neck and protruding teeth. 72 Having failed to
observe common medical standards in pre-operative management and intubation, respondent Dra.
Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team.
As the so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him
perform their task in the proper manner. Respondent Dr. Hosaka's 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 Erlinda's cholecystectomy, and was in fact over three hours late for the latter's
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 Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are
allegedly not hospital employees, presents problems in apportioning responsibility for negligence in
medical malpractice cases. However, the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject the
application. 75 This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition
to these, the physician's 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 patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of
allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case, the question now arises
as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's
condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for
those of others based on the former's responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned prove that they have observed the diligence of
a good father of the family to prevent damage.78 In other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the diligence of a good father of a family to
prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family
in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180.
Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for
Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we hold
that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care
of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of home-based care for a comatose individual. The
calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the
patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were
forced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing
in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation
should be normally made by a dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid
muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to
respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper care, not the cost of the care the family is
usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by
him as he has duly proved. The Civil Code provides:
 Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

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

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty. 80 In other words, temperate damages can and
should be awarded on top of actual or compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no incompatibility arises when both actual
and temperate damages are provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable and certainly not in the best interests of the administration of justice
for the victim in such cases to constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded temperate damages are appropriate. The
amount given as temperate damages, though to a certain extent speculative, should take into account the
cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient
who has remained in that condition for over a decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the onset of litigation, it would be now much more in
step with the interests of justice if the value awarded for temperate damages would allow petitioners to
provide optimal care for their loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home without the aid of
professionals, for anything less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury
suffered by the plaintiff would have led to expenses which were difficult to estimate because while they
would have been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff,
they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

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

her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will
have to be replaced and readjusted to changes in the size of her lower limb effected by
the biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the changes
in bone resulting from a precipitate decrease in calcium levels observed in the bones of
all post-menopausal women. In other words, the damage done to her would not only be
permanent and lasting, it would also be permanently changing and adjusting to the
physiologic changes which her body would normally undergo through the years. The
replacements, changes, and adjustments will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

 A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The sensory
functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much
more serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care has so far been heroically shouldered by her
husband and children, who, in the intervening years have been deprived of the love of a wife and a
mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the
surface of the resulting moral damage because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and injury suffered by the victim or those actually
affected by the victim's condition. 84The husband and the children, all petitioners in this case, will have
to live with the day to day uncertainty of the patient's 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 family's 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 attorney's fees valued at
P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However,
intent is immaterial in negligence cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician's experience with his patients would sometimes tempt him to
deviate from established community practices, and he may end a distinguished career using unorthodox
methods without incident. However, when failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure and a nexus is made between the deviation
and the injury or damage, the physician would necessarily be called to account for it. In the case at bar,
the failure to observe pre-operative assessment protocol which would have influenced the intubation in a
salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2)
P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as
exemplary damages and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.
 FIRST DIVISION

[G.R. No. 132266. December 21, 1999]

CASTILEX INDUSTRIAL CORPORATION, petitioner, vs. VICENTE VASQUEZ, JR. and

LUISA SO VASQUEZ, and CEBU DOCTORS HOSPITAL, INC.,respondents.

DECISION
DAVIDE, JR., C.J.:

The pivotal issue in this petition is whether an employer may be held vicariously liable for the
death resulting from the negligent operation by a managerial employee of a company-issued
vehicle.
The antecedents, as succinctly summarized by the Court of Appeals, are as follows:

On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So Vasquez, was driving a
Honda motorcycle around Fuente Osmea Rotunda. He was traveling counter-clockwise, (the normal
flow of traffic in a rotunda) but without any protective helmet or goggles. He was also only carrying
a Students Permit to Drive at the time. Upon the other hand, Benjamin Abad [was a] manager of
Appellant Castilex Industrial Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate
no. GBW-794. On the same date and time, Abad drove the said company car out of a parking lot but
instead of going around the Osmea rotunda he made a short cut against [the] flow of the traffic in
proceeding to his route to General Maxilom St. or to Belvic St.

In the process, the motorcycle of Vasquez and the pick-up of Abad collided with each other causing
severe injuries to the former. Abad stopped his vehicle and brought Vasquez to the Southern Islands
Hospital and later to the Cebu Doctors Hospital.

On September 5, 1988, Vasquez died at the Cebu Doctors Hospital. It was there that Abad signed an
acknowledgment of Responsible Party (Exhibit K) wherein he agreed to pay whatever hospital bills,
professional fees and other incidental charges Vasquez may incur.

After the police authorities had conducted the investigation of the accident, a Criminal Case was
filed against Abad but which was subsequently dismissed for failure to prosecute. So, the present
action for damages was commenced by Vicente Vasquez, Jr. and Luisa So Vasquez, parents of the
deceased Romeo So Vasquez, against Jose Benjamin Abad and Castilex Industrial Corporation. In
the same action, Cebu Doctors Hospital intervened to collect unpaid balance for the medical
expense given to Romeo So Vasquez.[1]

The trial court ruled in favor of private respondents Vicente and Luisa Vasquez and ordered
Jose Benjamin Abad (hereafter ABAD) and petitioner Castilex Industrial Corporation (hereafter
CASTILEX) to pay jointly and solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial
expenses; P50,000.00 as moral damages; P10,000.00 as attorneys fees; and P778,752.00 for loss of
earning capacity; and (2) Cebu Doctors Hospital, the sum of P50,927.83 for unpaid medical and
hospital bills at 3% monthly interest from 27 July 1989 until fully paid, plus the costs of
litigation.[2]
CASTILEX and ABAD separately appealed the decision.
In its decision[3] of 21 May 1997, the Court of Appeals affirmed the ruling of the trial court
holding ABAD and CASTILEX liable but held that the liability of the latter is only vicarious and
not solidary with the former. It reduced the award of damages representing loss of earning capacity
from P778,752.00 to P214,156.80; and the interest on the hospital and medical bills, from 3% per
month to 12% per annum from 5 September 1988 until fully paid.
Upon CASTILEXs motion for reconsideration, the Court of Appeals modified its decision by
(1) reducing the award of moral damages from P50,000 to P30,000 in view of the deceaseds
contributory negligence; (b) deleting the award of attorneys fees for lack of evidence; and (c)
reducing the interest on hospital and medical bills to 6% per annum from 5 September 1988 until
fully paid.[4]
Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in (1)
applying to the case the fifth paragraph of Article 2180 of the Civil Code, instead of the fourth
paragraph thereof; (2) that as a managerial employee, ABAD was deemed to have been always
acting within the scope of his assigned task even outside office hours because he was using a
vehicle issued to him by petitioner; and (3) ruling that petitioner had the burden to prove that the
employee was not acting within the scope of his assigned task.
Jose Benjamin ABAD merely adopted the statement of facts of petitioner which holds fast on
the theory of negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez argue that their sons death was caused by the
negligence of petitioners employee who was driving a vehicle issued by petitioner and who was on
his way home from overtime work for petitioner; and that petitioner is thus liable for the resulting
injury and subsequent death of their son on the basis of the fifth paragraph of Article 2180. Even if
the fourth paragraph of Article 2180 were applied, petitioner cannot escape liability therefor. They
moreover argue that the Court of Appeals erred in reducing the amount of compensatory damages
when the award made by the trial court was borne both by evidence adduced during the trial
regarding deceaseds wages and by jurisprudence on life expectancy.Moreover, they point out that
the petition is procedurally not acceptable on the following grounds: (1) lack of an explanation for
serving the petition upon the Court of Appeals by registered mail, as required under Section 11,
Rule 13 of the Rules of Civil Procedure; and (2) lack of a statement of the dates of the expiration of
the original reglementary period and of the filing of the motion for extension of time to file a
petition for review.
For its part, respondent Cebu Doctors Hospital maintains that petitioner CASTILEX is indeed
vicariously liable for the injuries and subsequent death of Romeo Vasquez caused by ABAD, who
was on his way home from taking snacks after doing overtime work for petitioner. Although the
incident occurred when ABAD was not working anymore the inescapable fact remains that said
employee would not have been situated at such time and place had he not been required by
petitioner to do overtime work. Moreover, since petitioner adopted the evidence adduced by ABAD,
it cannot, as the latters employer, inveigle itself from the ambit of liability, and is thus estopped by
the records of the case, which it failed to refute.
We shall first address the issue raised by the private respondents regarding some alleged
procedural lapses in the petition.
Private respondents contention of petitioners violation of Section 11 of Rule 13 and Section 4
of Rule 45 of the 1997 Rules of Civil Procedure holds no water.
Section 11 of Rule 13 provides:

SEC. 11. Priorities in modes of service and filing. -- Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with respect to papers emanating from
the court, a resort to other modes must be accompanied by a written explanation why the service or
filing was not done personally. A violation of this Rule may be cause to consider the paper as not
filed.

The explanation why service of a copy of the petition upon the Court of Appeals was done by
registered mail is found on Page 28 of the petition. Thus, there has been compliance with the
aforequoted provision.
As regards the allegation of violation of the material data rule under Section 4 of Rule 45, the
same is unfounded. The material dates required to be stated in the petition are the following:(1) the
date of receipt of the judgment or final order or resolution subject of the petition; (2) the date of
filing of a motion for new trial or reconsideration, if any; and (3) the date of receipt of the notice of
the denial of the motion. Contrary to private respondents claim, the petition need not indicate the
dates of the expiration of the original reglementary period and the filing of a motion for extension of
time to file the petition. At any rate, aside from the material dates required under Section 4 of Rule
45, petitioner CASTILEX also stated in the first page of the petition the date it filed the motion for
extension of time to file the petition.
Now on the merits of the case.
 The negligence of ABAD is not an issue at this instance. Petitioner CASTILEX presumes said
negligence but claims that it is not vicariously liable for the injuries and subsequent death caused by
ABAD.
Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code should only apply
to instances where the employer is not engaged in business or industry. Since it is engaged in the
business of manufacturing and selling furniture it is therefore not covered by said provision. Instead,
the fourth paragraph should apply.
Petitioners interpretation of the fifth paragraph is not accurate. The phrase even though the
former are not engaged in any business or industry found in the fifth paragraph should be
interpreted to mean that it is not necessary for the employer to be engaged in any business or
industry to be liable for the negligence of his employee who is acting within the scope of his
assigned task.[5]
A distinction must be made between the two provisions to determine what is applicable. Both
provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or
enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business
or industry. The fourth paragraph covers negligent acts of employees committed either in the service
of the branches or on the occasion of their functions, while the fifth paragraph encompasses
negligent acts of employees acting within the scope of their assigned task. The latter is an expansion
of the former in both employer coverage and acts included. Negligent acts of employees, whether or
not the employer is engaged in a business or industry, are covered so long as they were acting
within the scope of their assigned task, even though committed neither in the service of the branches
nor on the occasion of their functions. For, admittedly, employees oftentimes wear different
hats. They perform functions which are beyond their office, title or designation but which,
nevertheless, are still within the call of duty.
This court has applied the fifth paragraph to cases where the employer was engaged in a
business or industry such as truck operators[6] and banks.[7] The Court of Appeals cannot,
therefore, be faulted in applying the said paragraph of Article 2180 of the Civil Code to this case.
Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry,
an employer is liable for the torts committed by employees within the scope of his assigned
tasks. But it is necessary to establish the employer-employee relationship; once this is done, the
plaintiff must show, to hold the employer liable, that the employee was acting within the scope of
his assigned task when the tort complained of was committed. It is only then that the employer may
find it necessary to interpose the defense of due diligence in the selection and supervision of the
employee.[8]
It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the time of
the tort occurrence. As to whether he was acting within the scope of his assigned task is a question
of fact, which the court a quo and the Court of Appeals resolved in the affirmative.
Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of
Appeals are entitled to great respect, and even finality at times. This rule is, however, subject to
exceptions such as when the conclusion is grounded on speculations, surmises, or
conjectures.[9] Such exception obtain in the present case to warrant review by this Court of the
finding of the Court of Appeals that since ABAD was driving petitioners vehicle he was acting
within the scope of his duties as a manager.
Before we pass upon the issue of whether ABAD was performing acts within the range of his
employment, we shall first take up the other reason invoked by the Court of Appeals in holding
petitioner CASTILEX vicariously liable for ABADs negligence, i.e., that the petitioner did not
present evidence that ABAD was not acting within the scope of his assigned tasks at the time of the
motor vehicle mishap. Contrary to the ruling of the Court of Appeals, it was not incumbent upon the
petitioner to prove the same. It was enough for petitioner CASTILEX to deny that ABAD was
acting within the scope of his duties; petitioner was not under obligation to prove this negative
averment. Ei incumbit probatio qui dicit, non qui negat (He who asserts, not he who denies, must
prove). The Court has consistently applied the ancient rule that if the plaintiff, upon whom rests the
burden of proving his cause of action, fails to show in a satisfactory manner facts which he bases his
claim, the defendant is under no obligation to prove his exception or defense.[10]
Now on the issue of whether the private respondents have sufficiently established that ABAD
was acting within the scope of his assigned tasks.
 ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was
driving a company-issued vehicle, registered under the name of petitioner. He was then leaving the
restaurant where he had some snacks and had a chat with his friends after having done overtime
work for the petitioner.
No absolutely hard and fast rule can be stated which will furnish the complete answer to the
problem of whether at a given moment, an employee is engaged in his employers business in the
operation of a motor vehicle, so as to fix liability upon the employer because of the employees
action or inaction; but rather, the result varies with each state of facts.[11]
In Filamer Christian Institute v. Intermediate Appellate Court,[12] this Court had the occasion
to hold that acts done within the scope of the employees assigned tasks includes any act done by an
employee in furtherance of the interests of the employer or for the account of the employer at the
time of the infliction of the injury or damages.
The court a quo and the Court of Appeals were one in holding that the driving by a manager
of a company-issued vehicle is within the scope of his assigned tasks regardless of the time and
circumstances.
We do not agree. The mere fact that ABAD was using a service vehicle at the time of the
injurious incident is not of itself sufficient to charge petitioner with liability for the negligent
operation of said vehicle unless it appears that he was operating the vehicle within the course or
scope of his employment.
The following are principles in American Jurisprudence on the employers liability for the
injuries inflicted by the negligence of an employee in the use of an employers motor vehicle:

I. Operation of Employers Motor Vehicle in Going to or from Meals

It has been held that an employee who uses his employers vehicle in going from his work to a
place where he intends to eat or in returning to work from a meal is not ordinarily acting within the
scope of his employment in the absence of evidence of some special business benefit to the
employer. Evidence that by using the employers vehicle to go to and from meals, an employee is
enabled to reduce his time-off and so devote more time to the performance of his duties supports the
finding that an employee is acting within the scope of his employment while so driving the
vehicle.[13]

II. Operation of Employers Vehicle in Going to or from Work

In the same vein, traveling to and from the place of work is ordinarily a personal problem or
concern of the employee, and not a part of his services to his employer. Hence, in the absence of
some special benefit to the employer other than the mere performance of the services available at
the place where he is needed, the employee is not acting within the scope of his employment even
though he uses his employers motor vehicle.[14]
The employer may, however, be liable where he derives some special benefit from having the
employee drive home in the employers vehicle as when the employer benefits from having the
employee at work earlier and, presumably, spending more time at his actual duties. Where the
employees duties require him to circulate in a general area with no fixed place or hours of work, or
to go to and from his home to various outside places of work, and his employer furnishes him with a
vehicle to use in his work, the courts have frequently applied what has been called the special errand
or roving commission rule, under which it can be found that the employee continues in the service
of his employer until he actually reaches home. However, even if the employee be deemed to be
acting within the scope of his employment in going to or from work in his employers vehicle, the
employer is not liable for his negligence where at the time of the accident, the employee has left the
direct route to his work or back home and is pursuing a personal errand of his own.

III. Use of Employers Vehicle Outside Regular Working Hours

 An employer who loans his motor vehicle to an employee for the latters personal use outside of
regular working hours is generally not liable for the employees negligent operation of the vehicle
during the period of permissive use, even where the employer contemplates that a regularly assigned
motor vehicle will be used by the employee for personal as well as business purposes and there is
some incidental benefit to the employer. Even where the employees personal purpose in using the
vehicle has been accomplished and he has started the return trip to his house where the vehicle is
normally kept, it has been held that he has not resumed his employment, and the employer is not
liable for the employees negligent operation of the vehicle during the return trip.[15]
The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the
doctrine of respondeat superior, not on the principle of bonus pater familias as in ours.Whether the
fault or negligence of the employee is conclusive on his employer as in American law or
jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the
employer as in ours, it is indispensable that the employee was acting in his employers business or
within the scope of his assigned task.[16]
In the case at bar, it is undisputed that ABAD did some overtime work at the petitioners office,
which was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldies Restaurant in
Fuente Osmea, Cebu City, which is about seven kilometers away from petitioners place of
business.[17] A witness for the private respondents, a sidewalk vendor, testified that Fuente Osmea
is a lively place even at dawn because Goldies Restaurant and Back Street were still open and
people were drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place.[18]
At the Goldies Restaurant, ABAD took some snacks and had a chat with friends. It was when
ABAD was leaving the restaurant that the incident in question occurred. That same witness for the
private respondents testified that at the time of the vehicular accident, ABAD was with a woman in
his car, who then shouted: Daddy, Daddy![19] This woman could not have been ABADs daughter,
for ABAD was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a
personal purpose not in line with his duties at the time he figured in a vehicular accident. It was then
about 2:00 a.m. of 28 August 1988, way beyond the normal working hours. ABADs working day
had ended; his overtime work had already been completed. His being at a place which, as petitioner
put it, was known as a haven for prostitutes, pimps, and drug pushers and addicts, had no connection
to petitioners business; neither had it any relation to his duties as a manager.Rather, using his
service vehicle even for personal purposes was a form of a fringe benefit or one of the perks
attached to his position.
Since there is paucity of evidence that ABAD was acting within the scope of the functions
entrusted to him, petitioner CASTILEX had no duty to show that it exercised the diligence of a
good father of a family in providing ABAD with a service vehicle. Thus, justice and equity require
that petitioner be relieved of vicarious liability for the consequences of the negligence of ABAD in
driving its vehicle.[20]
WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of the
Court of Appeals is AFFIRMED with the modification that petitioner Castilex Industrial
Corporation be absolved of any liability for the damages caused by its employee, Jose Benjamin
Abad.
SO ORDERED.
City of Manila v. Teotico
Posted on October 4, 2012
G.R. No. L-23052
22 SCRA 267
January 29, 1968
Facts:
In January 1958, at about 8pm, Teotico was about to board a jeepney in P. Burgos, Manila when he fell
into an uncovered manhole, resulting injuries upon him . Thereafter he sued for damages
under Art.2189 of the Civil Code the City of Manila, the mayor, the city engineer, the city health officer,
the city treasurer, and the chief of police. The CFI Manila ruled against Teotico. Upon appeal, the CA
reversed the CFI ruling and held that the City of Manila should pay damages to Teotico.
The City of Manila assailed the decision of the CA on the ground that the charter of Manila states that it
shall not be liable for damages caused by the negligence of the city officers in enforcing the charter; that
the charter is a special law and shall prevail over the Civil Code which is a general law; and that the
accident happened in national highway.
Issue:
Whether the City of Manila have control or supervision over P. Burgos Ave making it responsible for the
damages suffered by Teotico.
Held:
Yes. It is true that in case of conflict, a special law prevails over a general law; that the charter of Manila
is a special law and that the Civil Code is a general law. However, looking at the particular provisions of
each law concerned, the provision of the Manila Charter exempting it from liability caused by the
negligence of its officers is a general law in the sense that it exempts the city from negligence of its
officers in general. There is no particular exemption but merely a general exemption. On the other hand,
Article 2189 of the Civil Code provides a particular prescription to the effect that it makes provinces,
cities, and municipalities liable for the damages caused to a certain person by reason of the defective
condition of roads, streets, bridges, public buildings, and other-public works under their control or
supervision.
The allegation that the incident happened in a national highway was only raised for the first time in the
Citys motion for reconsideration in the Court of Appeals, hence it cannot be given due weight. At any
rate, even though it is a national highway, the law contemplates that regardless if whether or not the road
is national, provincial, city, or municipal, so long as it is under the Citys control and supervision, it shall
be responsible for damages by reason of the defective conditions thereof. In the case at bar, the City
admitted they have control and supervision over the road where Teotico fell when the City alleged that it
has been doing constant and regular inspection of the citys roads, P. Burgos included.
GUILATCO v. CITY OF DAGUPAN

G.R. No. 61516 March 21, 1989

FACTS:

Florentna GuilaTco, a court inTerpreTer, was abouT To board a Tricycle aT a sidewalk locaTed aT
PerezBoulevard when she accidenTally fell inTo a manhole locaTed in said side walk, causing her righT
leg To befracTured. She was hospiTalized and also as a resulT, suered loss of income and moral
damages.GuilaTco sued The CiTy of Dagupan. he CiTy replied ThaT Perez Boulevard, where The
deadly manholewas locaTed, is a natonal road noT under The conTrol and supervision of Dagupan. IT is
submied ThaT iT isacTually The MinisTry of Public Highways ThaT has conTrol and supervision Thru
The Highway Engineer, who bymere coincidence, is also The CiTy Engineer of Dagupan (malas naman
namin, CiTy Engineer).

ISSUE: WON the City of Dagupan is liable?

HELD:YES.

Reasons:1)We again apply ArT. 2189. BuT The bigger queston is , does The CiTy of Dagupan have
conTrol andsupervision over Perez Boulevard in order for iT To be held liable? he answer is yes. Why?
Read on.

2)he CiTy of Dagupan argued ThaT The supervision and conTrol over Perez Boulevard belongs moreTo
his functon as ex-ocio Highway Engineer, Thus The MinisTry of Public Highways should be held
liable.However, The courT gave This argumenTs: Alfredo G. angco, in his ocial capaciTy as CiTy
Engineer ofDagupan, as Ex-Ocio Highway Engineer, as Ex-Ocio CiTy Engineer of The Bureau of
Public Works, and, lasTbuT noT The leasT, as Building Ocial for Dagupan CiTy, receives The following
monThly compensaton:P1,810.66 from Dagupan CiTy, P200.00 from The MinisTry of Public Highways,
P100.00 from The Bureau ofPublic Works and P500.00 by virTue of P>D 1096, respectvely. his functon
of supervision over sTreeTs,public buildings, and oTher public works perTaining To The CiTy Engineer
is coursed Through MainTenanceFoeman and a MainTenance Engineer. AlThough These lasT Two
ocials are employees of The NatonalGovernmenT, They are deTailed wiTh The CiTy of Dagupan and
hence receive insTructon and supervision fromThe ciTy Through The CiTy Engineer. here is , Therefore,
no doubT ThaT The CiTy Engineer exercises conTrol orsupervision over The public works in queston.
Hence, The liabiliTy of The ciTy To The pettoner under artcle2198 of The CiTy Code is clear.

RAMOS vs. COURT OF APPEALS

G.R. No. 124354. December 29, 1999.

FACTS:

Erlinda Ramos underwent a surgical procedure to remove stone from her gall bladder (cholecystectomy).
They hired Dr. Hosaka, a surgeon, to conduct the surgery at the De Los Santos Medical Center (DLSMC).
Hosaka assured them that he would find a good anesthesiologist. But the operation did not go as planned,
Dr. Hosaka arrived 3 hours late for the operation, Dra. Gutierrez, the anesthesiologist botched the
administration of the anesthesia causing Erlinda to go into a coma and suffer brain damage. The botched
operation was witnessed by Herminda Cruz, sister in law of Erlinda and Dean of College of Nursing of
Capitol Medical Center.
The family of Ramos (petitioners) sued the hospital, the surgeon and the anesthesiologist for damages.
The petitioners showed expert testimony showing that Erlinda's condition was caused by the
anesthesiologist in not exercising reasonable care in intubating Erlinda. Eyewitnesses heard the
anesthesiologist saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.

Diagnostic tests prior to surgery showed that Erlinda was robust and fit to undergo surgery.

The RTC held that the anesthesiologist ommitted to exercise due care in intubating the patient, the
surgeon was remiss in his obligation to provide a good anesthesiologist and for arriving 3 hours late and
the hospital is liable for the negligence of the doctors and for not cancelling the operation after the
surgeon failed to arrive on time. The surgeon, anesthesiologist and the DLSMC were all held jointly and
severally liable for damages to petitioners. The CA reversed the decision of the Trial Court.

ISSUES: Whether or not the private respondents were negligent and thereby caused the comatose
condition of Ramos.

HELD:

Yes, private respondents were all negligent and are solidarily liable for the damages.

RATIO:

Res ipsa loquitur a procedural or evidentiary rule which means the thing or the transaction speaks for
itself. It 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
ordinarily in a medical malpractice case, the complaining party must present expert testimony to prove
that the attending physician was negligent.

This doctrine finds application in this case. On the day of the operation, Erlinda Ramos already
surrendered her person to the private respondents who had complete and exclusive control over her. Apart
from the gallstone problem, she was neurologically sound and fit. Then, after the procedure, she was
comatose and brain damagedres ipsa loquitur!the thing speaks for itself!

Negligence Private respondents were not able to disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the proximate cause of her condition. One need not be an
anesthesiologist in order to tell whether or not the intubation was a success. [res ipsa loquitur applies
here]. The Supreme Court also found that the anesthesiologist only saw Erlinda for the first time on the
day of the operation which indicates unfamiliarity with the patient and which is an act of negligence and
irresponsibility.

The head surgeon, Dr. Hosaka was also negligent. He failed to exercise the proper authority as the
captain of the ship in determining if the anesthesiologist observed the proper protocols. Also, because
he was late, he did not have time to confer with the anesthesiologist regarding the anesthesia delivery.

The hospital failed to adduce evidence showing that it exercised the diligence of a good father of the
family in hiring and supervision of its doctors (Art. 2180). The hospital was negligent since they are the
one in control of the hiring and firing of their consultants. While these consultants are not employees,
hospitals still exert significant controls on the selection and termination of doctors who work there which
is one of the hallmarks of an employer-employee reationship. Thus, the hospital was allocated a share in
the liability.

Damages temperate damages can and should be awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing.
 Castilex Industrial Corporation v. Vasquez
G.R. No. 132266, 21 December 1999

Complainants are the heirs of Romeo So Vasquez who died after being hit by a company-issued vehicle
driven by Benjamin Abad, who was a manager of defendant Castilex Industrial Corporation. The incident
happened around 2:00 am when Abad was on his way home from a lively restaurant after doing
overtime work and leaving with the vehicle. In their Defense, Castilex claimed that Abad was not acting
within the scope of his functions when the incident happened.

HELD: Castilex Industrial Corporation was not liable. The mere fact that ABAD was using a service
vehicle at the time of the injurious incident is not of itself sufficient to charge [the Corporation] with
liability for the negligent operation of said vehicle unless it appears that he was operating the vehicle
within the course or scope of his employment.

The following are principles in American Jurisprudence on the employers liability for the injuries
inflicted by the negligence of an employee in the use of an employers motor vehicle:

I. Operation of Employers Motor Vehicle in Going to or from Meals

It has been held that an employee who uses his employers vehicle in going from his work to a place
where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of his
employment in the absence of evidence of some special business benefit to the employer. Evidence that
by using the employers vehicle to go to and from meals, an employee is enabled to reduce his time-off
and so devote more time to the performance of his duties supports the finding that an employee is acting
within the scope of his employment while so driving the vehicle.

II. Operation of Employers Vehicle in Going to or from Work

In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of
the employee, and not a part of his services to his employer. Hence, in the absence of some special
benefit to the employer other than the mere performance of the services available at the place where he is
needed, the employee is not acting within the scope of his employment even though he uses his
employers motor vehicle.

The employer may, however, be liable where he derives some special benefit from having the employee
drive home in the employers vehicle as when the employer benefits from having the employee at work
earlier and, presumably, spending more time at his actual duties. Where the employees duties require
him to circulate in a general area with no fixed place or hours of work, or to go to and from his home to
various outside places of work, and his employer furnishes him with a vehicle to use in his work, the
courts have frequently applied what has been called the special errand or roving commission rule,
under which it can be found that the employee continues in the service of his employer until he actually
reaches home. However, even if the employee be deemed to be acting within the scope of his employment
in going to or from work in his employers vehicle, the employer is not liable for his negligence where at
the time of the accident, the employee has left the direct route to his work or back home and is pursuing a
personal errand of his own.

III. Use of Employers Vehicle Outside Regular Working Hours

An employer who loans his motor vehicle to an employee for the latters personal use outside of regular
working hours is generally not liable for the employees negligent operation of the vehicle during the
period of permissive use, even where the employer contemplates that a regularly assigned motor vehicle
will be used by the employee for personal as well as business purposes and there is some incidental
benefit to the employer. Even where the employees personal purpose in using the vehicle has been
accomplished and he has started the return trip to his house where the vehicle is normally kept, it has been
held that he has not resumed his employment, and the employer is not liable for the employees negligent
operation of the vehicle during the return trip.

The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine
of respondeat superior, not on the principle of bonus pater familias as in ours. Whether the fault or
negligence of the employee is conclusive on his employer as in American law or jurisprudence, or merely
gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is
indispensable that the employee was acting in his employers business or within the scope of his assigned
task.

In the case at bar, it is undisputed that ABAD did some overtime work at the petitioners office, which
was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldies Restaurant in Fuente
Osmea, Cebu City, which is about seven kilometers away from petitioners place of business. A witness
for the private respondents, a sidewalk vendor, testified that Fuente Osmea is a lively place even at
dawn because Goldies Restaurant and Back Street were still open and people were drinking
thereat. Moreover, prostitutes, pimps, and drug addicts littered the place.

At the Goldies Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD
was leaving the restaurant that the incident in question occurred. That same witness for the private
respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car, who
then shouted: Daddy, Daddy! This woman could not have been ABADs daughter, for ABAD was only
29 years old at the time.

To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal
purpose not in line with his duties at the time he figured in a vehicular accident. It was then about 2:00
a.m. of 28 August 1988, way beyond the normal working hours. ABADs working day had ended; his
overtime work had already been completed. His being at a place which, as [the Corporation puts] it, was
known as a haven for prostitutes, pimps, and drug pushers and addicts, had no connection to [the
Corporations] business; neither had it any relation to his duties as a manager. Rather, using his service
vehicle even for personal purposes was a form of a fringe benefit or one of the perks attached to his
position.

Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to
him, [the Corporation] had no duty to show that it exercised the diligence of a good father of a family in
providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be relieved of
vicarious liability for the consequences of the negligence of ABAD in driving its vehicle. (Citations
omitted.)