SECOND DIVISION [G.R. No. 130547.

October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed
REYES, represented by their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY
HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO, respondents.

DECISION

MENDOZA, J.:

This is a petition for review of the decision[1] of the Court of Appeals in CA-G.R. CV No. 36551
affirming the decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for
damages filed by petitioners against respondents.

The facts are as follows:

Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely,
Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his
death on January 8, 1987, Jorge had been suffering from a recurring fever with chills. After he failed to
get relief from some home medication he was taking, which consisted of analgesic, antipyretic, and
antibiotics, he decided to see the doctor.

On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended
to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a
physical examination and took his medical history. She noted that at the time of his admission, Jorge was
conscious, ambulatory, oriented, coherent, and with respiratory distress.[2] Typhoid fever was then
prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per month.[3]
Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard test
for typhoid fever, to be performed on Jorge. Blood count, routine urinalysis, stool examination, and
malarial smear were also made.[4] After about an hour, the medical technician submitted the results of
the test from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up
to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.

Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history
and gave him a physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever.
Antibiotics being the accepted treatment for typhoid fever, she ordered that a compatibility test with the
antibiotic chloromycetin be done on Jorge. Said test was administered by nurse Josephine Pagente who
also gave the patient a dose of triglobe. As she did not observe any adverse reaction by the patient to
chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said antibiotic to be administered
on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just
before midnight.

At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to
41C. The patient also experienced chills and exhibited respiratory distress, nausea, vomiting, and
convulsions. Dr. Blanes put him under oxygen, used a suction machine, and administered hydrocortisone,
temporarily easing the patients convulsions. When he regained consciousness, the patient was asked by
Dr. Blanes whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge
replied he did not.[5] After about 15 minutes, however, Jorge again started to vomit, showed
restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency measures taken before
and, in addition, valium was administered. Jorge, however, did not respond to the treatment and slipped
into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficient
oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his
death was Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever.

On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint[6]for
damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico,
and nurse Josephine Pagente. On September 24, 1987, petitioners amended their complaint to implead
respondent Mercy Community Clinic as additional defendant and to drop the name of Josephine Pagente
as defendant since she was no longer connected with respondent hospital. Their principal contention was
that Jorge did not die of typhoid fever.[7] Instead, his death was due to the wrongful administration of
chloromycetin. They contended that had respondent doctors exercised due care and diligence, they
would not have recommended and rushed the performance of the Widal Test, hastily concluded that
Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting
sufficient tests on the patients compatibility with said drug. They charged respondent clinic and its
directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in hiring
negligent doctors and nurses.[8]
 Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the
issues on the following: (1) whether the death of Jorge Reyes was due to or caused by the negligence,
carelessness, imprudence, and lack of skill or foresight on the part of defendants; (2) whether
respondent Mercy Community Clinic was negligent in the hiring of its employees; and (3) whether either
party was entitled to damages. The case was then heard by the trial court during which, in addition to
the testimonies of the parties, the testimonies of doctors as expert witnesses were presented.

Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern
Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an
autopsy on Jorge Reyes to determine the cause of his death. However, he did not open the skull to
examine the brain. His findings[9] showed that the gastro-intestinal tract was normal and without any
ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever.
He also stated that he had not seen a patient die of typhoid fever within five days from the onset of the
disease.

For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio.
Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology and infectious diseases.
He is also a consultant at the Cebu City Medical Center and an associate professor of medicine at the
South Western University College of Medicine in Cebu City. He had treated over a thousand cases of
typhoid patients. According to Dr. Gotiong, the patients history and positive Widal Test results ratio of
1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares observation
regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr. Gotiong said that such
hyperplasia in the intestines of a typhoid victim may be microscopic. He noted that since the toxic effect
of typhoid fever may lead to meningitis, Dr. Vacalares autopsy should have included an examination of
the brain.[10]

The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of
Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine
Society of Pathologist, associate professor of the Cebu Institute of Medicine, and chief pathologist of the
Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that although he was partial to
the use of the culture test for its greater reliability in the diagnosis of typhoid fever, the Widal Test may
also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges case was already the maximum
by which a conclusion of typhoid fever may be made. No additional information may be deduced from a
higher dilution.[11] He said that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive.

On September 12, 1991, the trial court rendered its decision absolving respondents from the
charges of negligence and dismissing petitioners action for damages. The trial court likewise dismissed
respondents counterclaim, holding that, in seeking damages from respondents, petitioners were impelled
by the honest belief that Jorges death was due to the latters negligence.

Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals
affirmed the decision of the trial court.

Hence this petition.

Petitioners raise the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE
DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.

II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN
UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.

III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD
OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT
APPRECIATE[D] NO DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This is a particular form of negligence which consists
in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill
which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding
circumstances.[12] In order to successfully pursue such a claim, a patient must prove that the physician
or surgeon either failed to do something which a reasonably prudent physician or surgeon would have
done, or that he or she did something that a reasonably prudent physician or surgeon would not have
done, and that the failure or action caused injury to the patient.[13] There are thus four elements
involved in medical negligence cases, namely: duty, breach, injury, and proximate causation.
 In the present case, there is no doubt that a physician-patient relationship existed between
respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least the same level
of care that any reasonably competent doctor would use to treat a condition under the same
circumstances. It is breach of this duty which constitutes actionable malpractice.[14] As to this aspect of
medical malpractice, the determination of the reasonable level of care and the breach thereof, expert
testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation.[15]

Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is under the doctrine of
res ipsa loquitur. As held in Ramos v. Court of Appeals:[16]

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 loquitor is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence. 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. 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. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted
to find a physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that a resulting injury would not have occurred to
the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to
show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitor 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, injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, removal of the wrong part of the body when
another part was intended, knocking out a tooth while a patients jaw was under anesthetic for the
removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, during
or following an operation for appendicitis, among others.[17]

Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the
present case because Jorge Reyes was merely experiencing fever and chills for five days and was fully
conscious, coherent, and ambulant when he went to the hospital. Yet, he died after only ten hours from
the time of his admission.

This contention was rejected by the appellate court.

Petitioners now contend that all requisites for the application of res ipsa loquitur were present,
namely: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2)
the instrumentality or agency which caused the injury was under the exclusive control of the person in
charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the
person injured.[18]

The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos
case, the question was whether a surgeon, an anesthesiologist, and a hospital should be made liable for
the comatose condition of a patient scheduled for cholecystectomy.[19] In that case, the patient was
given anesthesia prior to her operation. Noting that the patient was neurologically sound at the time of
her operation, the Court applied the doctrine of res ipsa loquitur as mental brain damage does not
normally occur in a gallblader operation in the absence of negligence of the anesthesiologist. Taking
judicial notice that anesthesia procedures had become so common that even an ordinary person could tell
if it was administered properly, we allowed the testimony of a witness who was not an expert. In this
case, while it is true that the patient died just a few hours after professional medical assistance was
rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the
patient already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and
antibiotics given him by his wife. This shows that he had been suffering from a serious illness and
professional medical help came too late for him.

Respondents alleged failure to observe due care was not immediately apparent to a layman so as
to justify application of res ipsa loquitur. The question required expert opinion on the alleged breach by
respondents of the standard of care required by the circumstances. Furthermore, on the issue of the
correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico. As held in
Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations
in malpractice cases where a layman is able to say, as a matter of common knowledge and observation,
that the consequences of professional care were not as such as would ordinarily have followed if due care
had been exercised. A distinction must be made between the failure to secure results, and the occurrence
of something more unusual and not ordinarily found if the service or treatment rendered followed the
usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res
ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits
of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any particular scientific treatment did not produce
the desired result.[20]

Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligence allegedly
committed by respondent doctors.

Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test,
diagnosed Jorges illness as typhoid fever, and immediately prescribed the administration of the antibiotic
chloromycetin;[21] and (2) Dr. Marvie Blanes erred in ordering the administration of the second dose of
500 milligrams of chloromycetin barely three hours after the first was given.[22] Petitioners presented the
testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training Hospital,
Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that,
based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock
undetermined, which could be due to allergic reaction or chloromycetin overdose. We are not persuaded.

First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him
to be so as he is not a specialist on infectious diseases like typhoid fever. Furthermore, although he may
have had extensive experience in performing autopsies, he admitted that he had yet to do one on the
body of a typhoid victim at the time he conducted the postmortem on Jorge Reyes. It is also plain from
his testimony that he has treated only about three cases of typhoid fever. Thus, he testified that:[23]

ATTY. PASCUAL:

Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever?

A In autopsy. But, that was when I was a resident physician yet.

Q But you have not performed an autopsy of a patient who died of typhoid fever?

A I have not seen one.

Q And you testified that you have never seen a patient who died of typhoid fever within five days?

A I have not seen one.

Q How many typhoid fever cases had you seen while you were in the general practice of medicine?

A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and
like that. And the widal test does not specify the time of the typhoid fever.

Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the
cases now you practice?

A I had only seen three cases.

Q And that was way back in 1964?

A Way back after my training in UP.

Q Clinically?

A Way back before my training.

He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were
therefore correct in discarding his testimony, which is really inadmissible.

In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury
was due to oxygen deprivation after the patient had bronchospasms[24] triggered by her allergic
response to a drug,[25] and not due to faulty intubation by the anesthesiologist. As the issue was
whether the intubation was properly performed by an anesthesiologist, we rejected the opinion of the
pulmonologist on the ground that he was not: (1) an anesthesiologist who could enlighten the court
about anesthesia practice, procedure, and their complications; nor (2) an allergologist who could properly
advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could explain the
pharmacologic and toxic effects of the drug allegedly responsible for the bronchospasms.

Second. On the other hand, the two doctors presented by respondents clearly were experts on
the subject. They vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a
diplomate whose specialization is infectious diseases and microbiology and an associate professor at the
Southwestern University College of Medicine and the Gullas College of Medicine, testified that he has
already treated over a thousand cases of typhoid fever.[26] According to him, when a case of typhoid
fever is suspected, the Widal test is normally used,[27] and if the 1:320 results of the Widal test on Jorge
Reyes had been presented to him along with the patients history, his impression would also be that the
patient was suffering from typhoid fever.[28] As to the treatment of the disease, he stated that
chloromycetin was the drug of choice.[29] He also explained that despite the measures taken by
respondent doctors and the intravenous administration of two doses of chloromycetin, complications of
the disease could not be discounted. His testimony is as follows:[30]

ATTY. PASCUAL:

Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given?

A If those are the findings that would be presented to me, the first thing I would consider would be
typhoid fever.

Q And presently what are the treatments commonly used?

A Drug of choice of chloramphenical.

Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours
later, the patient associated with chills, temperature - 41oC, what could possibly come to your mind?

A Well, when it is change in the clinical finding, you have to think of complication.

Q And what will you consider on the complication of typhoid?

A One must first understand that typhoid fever is toximia. The problem is complications are caused by
toxins produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic
myocardities; then you can consider a toxic meningitis and other complications and perforations and
bleeding in the ilium.

Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams
intravenous, after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours
later, the patient developed chills . . . rise in temperature to 41oC, and then about 40 minutes later the
temperature rose to 100oF, cardiac rate of 150 per minute who appeared to be coherent, restless,
nauseating, with seizures: what significance could you attach to these clinical changes?

A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of
the high cardiac rate.

Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent
about 20 minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death:
what significance would you attach to this development?

A We are probably dealing with typhoid to meningitis.

Q In such case, Doctor, what finding if any could you expect on the post-mortem examination?

A No, the finding would be more on the meninges or covering of the brain.

Q And in order to see those changes would it require opening the skull?

A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was
normal, Dr. Rico explained that, while hyperplasia[31] in the payers patches or layers of the small
intestines is present in typhoid fever, the same may not always be grossly visible and a microscope was
needed to see the texture of the cells.[32]

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the
Philippine and American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief
pathologist at the MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr.
Memorial Medical Center. He stated that, as a clinical pathologist, he recognized that the Widal test is
used for typhoid patients, although he did not encourage its use because a single test would only give a
presumption necessitating that the test be repeated, becoming more conclusive at the second and third
weeks of the disease.[33] He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is
really the possible complications which could develop like perforation, hemorrhage, as well as liver and
cerebral complications.[34] As regards the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio
stated that no additional information could be obtained from a higher ratio.[35] He also agreed with Dr.
Gotiong that hyperplasia in the payers patches may be microscopic.[36]

Indeed, the standard contemplated is not what is actually the average merit among all known
practitioners from the best to the worst and from the most to the least experienced, but the reasonable
average merit among the ordinarily good physicians.[37] Here, Dr. Marlyn Rico did not depart from the
reasonable standard recommended by the experts as she in fact observed the due care required under
the circumstances. Though the Widal test is not conclusive, it remains a standard diagnostic test for
typhoid fever and, in the present case, greater accuracy through repeated testing was rendered
unobtainable by the early death of the patient. The results of the Widal test and the patients history of
fever with chills for five days, taken with the fact that typhoid fever was then prevalent as indicated by
the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give
upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever.

Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the
drug of choice for typhoid fever. The burden of proving that Jorge Reyes was suffering from any other
illness rested with the petitioners. As they failed to present expert opinion on this, preponderant evidence
to support their contention is clearly absent.

Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was
negligent in ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at
an interval of less than three hours. Petitioners claim that Jorge Reyes died of anaphylactic shock[38] or
possibly from overdose as the second dose should have been administered five to six hours after the
first, per instruction of Dr. Marlyn Rico. As held by the Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority.
Wilson, et. al., in Harrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the
generic of chloromycetin) is the drug of choice for typhoid fever and that no drug has yet proven better
in promoting a favorable clinical response. Chlorampenicol (Chloromycetin) is specifically indicated for
bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS Annual, 1994,
p. 211) The dosage likewise including the first administration of five hundred milligrams (500 mg.) at
around nine oclock in the evening and the second dose at around 11:30 the same night was still within
medically acceptable limits, since the recommended dose of chloromycetin is one (1) gram every six (6)
hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics and
Toxicology, 1996). The intravenous route is likewise correct. (Mansser, ONick, Pharmacology and
Therapeutics) Even if the test was not administered by the physician-on-duty, the evidence introduced
that it was Dra. Blanes who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once
more, this Court rejects any claim of professional negligence in this regard.

As regards anaphylactic shock, the usual way of guarding against it prior to the administration of
a drug, is the skin test of which, however, it has been observed: Skin testing with haptenic drugs is
generally not reliable. Certain drugs cause nonspecific histamine release, producing a weal-and-flare
reaction in normal individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a
negative skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug.
(Terr, Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What all this means legally is
that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the
negligence of the appellee-physicians for all that the law requires of them is that they perform the
standard tests and perform standard procedures. The law cannot require them to predict every possible
reaction to all drugs administered. The onus probandi was on the appellants to establish, before the trial
court, that the appellee-physicians ignored standard medical procedure, prescribed and administered
medication with recklessness and exhibited an absence of the competence and skills expected of general
practitioners similarly situated.[39]

Fourth. Petitioners correctly observe that the medical profession is one which, like the business of
a common carrier, is affected with public interest. Moreover, they assert that since the law imposes upon
common carriers the duty of observing extraordinary diligence in the vigilance over the goods and for the
safety of the passengers,[40] physicians and surgeons should have the same duty toward their
patients.[41] They also contend that the Court of Appeals erred when it allegedly assumed that the level
of medical practice is lower in Iligan City, thereby reducing the standard of care and degree of diligence
required from physicians and surgeons in Iligan City.

The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound
to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers
transported by them, according to the circumstances of each case. . . .

The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned
through years of education, training, and by first obtaining a license from the state through professional
board examinations. Such license may, at any time and for cause, be revoked by the government. In
addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an
ancient code of discipline and ethical rules which doctors have imposed upon themselves in recognition
and acceptance of their great responsibility to society. Given these safeguards, there is no need to
expressly require of doctors the observance of extraordinary diligence. As it is now, the practice of
medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the
standard contemplated for doctors is simply the reasonable average merit among ordinarily good
physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable
skill and competence . . . that a physician in the same or similar locality . . . should apply.

WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

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.

DECISION
KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare
of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A
mistake, through gross negligence or incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on his patients fate.[1]
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate comatose condition of a patient scheduled
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
anesthesiologists fee and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15,
22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

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

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

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

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

At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for the arrival of the doctor
even as he did his best to find somebody who will allow him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking
to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that Dr. Hosaka is already here. She then saw people inside the operating room moving,
doing this and that, [and] preparing the patient for the operation (TSN, January 13, 1988, p. 16). As she
held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter
heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan
(id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez
was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to
call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room,
she saw this anesthesiologist trying to intubate the patient. The patients nailbed became bluish and the
patient was placed in a trendelenburg position - a position where the head of the patient is placed in a
position lower than her feet which is an indication that there is a decrease of blood supply to the patients
brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she told Rogelio
E. Ramos that something wrong was x x x happening (Ibid.). Dr. Calderon was then able to intubate the
patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw several doctors rushing towards the operating
room.When informed by Herminda Cruz that something wrong was happening, he told her (Herminda) to
be back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).

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

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

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

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

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

Thus, on 8 January 1986, petitioners filed a civil case [6] for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging negligence in the management and care of
Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlindas injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the damage
sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her
airway by private respondents during the anesthesia phase. On the other hand, private respondents
primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the
cause of brain damage was Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor
of petitioners, to wit:

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

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

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

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

In having held thus, this Court rejects the defense raised by defendants that they have acted with due
care and prudence in rendering medical services to 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

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following
sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from
November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;

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

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

4) the costs of the suit.

SO ORDERED.[7]

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

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

SO ORDERED.[8]

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

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

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

SO ORDERED.[10]

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

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.

CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

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

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the Court of
Appeals. In their Comment,[12] private respondents contend that the petition should not be given due
course since the motion for reconsideration of the petitioners on the decision of the Court of Appeals was
validly dismissed by the appellate court for having been filed beyond the reglementary period. We do not
agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate
court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of
the decision of the appellate court was furnished to the counsel on record. Petitioner, not being a lawyer
and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
 It is elementary that when a party is represented by counsel, all notices should be sent to the partys
lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on
record is no notice at all. In the present case, since a copy of the decision of the appellate court was not
sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay
in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the
Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier
resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believe
that the receipt of the former should be considered in determining the timeliness of the filing of the
present petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a
more logical presentation of the discussion we shall first consider the issue on the applicability of the
doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled
in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself.
The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an
explanation.[13] Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by
the defendants want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence. [15] It is grounded in the superior
logic of ordinary human experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. [16] Hence, res ipsa
loquitur isapplied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or separate ground of liability. [17] Instead, it is considered
as merely evidentiary or in the nature of a procedural rule. [18] It is regarded as a mode of proof, or a
mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence.[19] In other words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence. It is simply a step in the process of such
proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. [20] Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.[21]
In the above requisites, the fundamental element is the control of the instrumentality which caused
the damage.[22] Such element of control must be shown to be within the dominion of the defendant. In
order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a
situation where it is applicable, and must establish that the essential elements of the doctrine were
present in a particular incident.[23]
Medical malpractice[24]cases do not escape the application of this doctrine. Thus, res ipsa
loquitur has been applied when the circumstances attendant upon the harm are themselves of such a
character as to justify an inference of negligence as the cause of that harm. [25] The application of res ipsa
loquitur in medical negligence cases presents a question of law since it is a judicial function to determine
whether a certain set of circumstances does, as a matter of law, permit a given inference. [26]
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence. [27] The reason is that the
general rule on the necessity of expert testimony applies only to such matters clearly within the domain
of medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. [28] Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses.[29] Hence, in cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of
expert testimony, where the court from its fund of common knowledge can determine the proper
standard of care.[30] Where common knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an inference of negligence may be drawn
giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred. [31] When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa
loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, [32] injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment,[33] removal of the wrong part of the body when
another part was intended,[34] knocking out a tooth while a patients jaw was under anesthetic for the
removal of his tonsils,[35] and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis,[36] among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the burden of
proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a
rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is
able to say, as a matter of common knowledge and observation, that the consequences of professional
care were not as such as would ordinarily have followed if due care had been exercised. [37] A distinction
must be made between the failure to secure results, and the occurrence of something more unusual and
not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in
that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application
in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
treatment.[38] The physician or surgeon is not required at his peril to explain why any particular diagnosis
was not correct, or why any particular scientific treatment did not produce the desired result. [39] Thus, res
ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished.[40] The real question, therefore, is whether or not in the
process of the operation any extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional activity in such operations, which,
if unexplained would themselves reasonably speak to the average man as the negligent cause or causes
of the untoward consequence.[41] If there was such extraneous interventions, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of
exculpation, if he could.[42]
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation
presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where the Kansas Supreme
Court in applying the res ipsa loquitur stated:

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

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

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody and
control of private respondents who exercised complete and exclusive control over her. At the time of
submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously,
brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not happen in the absence of negligence of
someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person
being put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration
of anesthesia, including the endotracheal tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of
contributory negligence because she was under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed
while the patient is unconscious and under the immediate and exclusive control of the physicians, we
hold that a practical administration of justice dictates the application of res ipsa loquitur. Upon these facts
and under these circumstances the Court would be able to say, as a matter of common knowledge and
observation, if negligence attended the management and care of the patient. Moreover, the liability of
the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired
results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation
or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out
for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that
the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or
to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of Erlinda during the anesthesia phase of the
operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlindas
comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on
the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of
Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the
Court of Appeals rationalized that she was candid enough to admit that she experienced some difficulty in
the endotracheal intubation[45]of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of
Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the
wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were
unable to disprove the presumption of negligence on their part in the care of Erlinda and their negligence
was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia
phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This
fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic event
occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of the
patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed became
bluish and I saw the patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the
brain.[46]
xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part
of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and
cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a
patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the
patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the
patient or that she conducted any type of examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's
categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. [47]

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered
a layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which
are observable by any one.[48] This is precisely allowed under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may
be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary.[49] We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it was administered properly. As such, it
would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience
and scholarship led to her appointment as Dean of the Capitol Medical Center School of Nursing, was fully
capable of determining whether or not the intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching
hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing.[50]Reviewing witness Cruz' statements, we find that the same
were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity
which would have been difficult to fabricate. With her clinical background as a nurse, the Court is
satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful
day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that
she experienced difficulty in inserting the tube into Erlindas trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away.[51]
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned
more anteriorly (slightly deviated from the normal anatomy of a person) [52] making it harder to locate
and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more
difficult.
 The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlindas airway, prior to
the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it
appears that the observation was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally
observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for
anesthesia begins when the anesthesiologist reviews the patients medical records and visits with the
patient, traditionally, the day before elective surgery. [53] It includes taking the patients medical history,
review of current drug therapy, physical examination and interpretation of laboratory data. [54] The
physical examination performed by the anesthesiologist is directed primarily toward the central nervous
system, cardiovascular system, lungs and upper airway.[55] A thorough analysis of the patient's airway
normally involves investigating the following: cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental
distance.[56] Thus, physical characteristics of the patients upper airway that could make tracheal
intubation difficult should be studied.[57] Where the need arises, as when initial assessment indicates
possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough
examination of the patients airway would go a long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the
day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-
operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez
was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed
of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez act of seeing her patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of
her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with
the trial court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra.
Gutierrez tried to muddle the difference between an elective surgery and an emergency surgery just so
her failure to perform the required pre-operative evaluation would escape unnoticed. In her testimony
she asserted:

ATTY. LIGSAY:

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

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and
in my case, with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities (sic). [58]

However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see
the patient only a few minutes before surgery, if at all. Elective procedures, on the other hand, are
operative procedures that can wait for days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to make a proper assessment, including the time to be at
the patient's bedside to do a proper interview and clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed
consent. Usually, the pre-operative assessment is conducted at least one day before the intended
surgery, when the patient is relaxed and cooperative.
Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the
time to make a thorough evaluation of Erlindas case prior to the operation and prepare her for
anesthesia.However, she never saw the patient at the bedside. She herself admitted that she had seen
petitioner only in the operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As such, her attempt to exculpate
herself must fail.
 Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlindas
coma was due to bronchospasm[59] mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced
private respondents' theory that the oxygen deprivation which led to anoxic encephalopathy, [60] was due
to an unpredictable drug reaction to the 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. Jamoras testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on patients, but only from reading certain references, to
wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method
of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from books
and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience you feel
that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims.[61]
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields
of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that
he could not testify about the drug with medical authority, it is clear that the appellate court erred in
giving weight to Dr. Jamoras testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence[62]regarding expert witnesses states:
Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject or
by practical experience.[63] Clearly, Dr. Jamora does not qualify as an expert witness based on the above
standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology.Oddly,
apart from submitting testimony from a specialist in the wrong field, private respondents intentionally
avoided providing testimony by competent and independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing - some of the more common accompanying signs of an allergic reaction - appears
on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, 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 absolve them of
any and all responsibility for the patients condition.
In view of the evidence at hand, we are inclined to believe petitioners stand that it was the faulty
intubation which was the proximate cause of Erlindas comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces injury, and without which the result would not have
occurred.[64] An injury or damage is proximately caused by an act or a failure to act, whenever it appears
from the evidence in the case, that the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission.[65] It is the dominant, moving or producing
cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events leading to Erlindas brain damage and, ultimately,
her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a
failure. This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez
remarked, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Thereafter,
witness Cruz noticed abdominal distention on the body of Erlinda. The development of abdominal
distention, together with respiratory embarrassment indicates that the endotracheal tube entered the
esophagus instead of the respiratory tree. In other words, instead of the intended endotracheal
intubation what actually took place was an esophageal intubation. During intubation, such distention
indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause some delay in oxygen delivery into
the lungs as the tube which carries oxygen is in the wrong place. That abdominal distention had been
observed during the first intubation suggests that the length of time utilized in inserting the endotracheal
tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to the
delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. [66] As stated in the
testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of
Erlinda were already blue.[67] However, private respondents contend that a second intubation was
executed on Erlinda and this one was successfully done. We do not think so. No evidence exists on
record, beyond private respondents' bare claims, which supports the contention that the second
intubation was successful. Assuming that the endotracheal tube finally found its way into the proper
orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed immediately after the second intubation. Proceeding
from this event (cyanosis), it could not be claimed, as private respondents insist, that the second
intubation was accomplished. Even granting that the tube was successfully inserted during the second
attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already suffered brain
damage as a result of the inadequate oxygenation of her brain for about four to five minutes.[68]
The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. [69]Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing
a thorough evaluation of the patients airway prior to the operation. [70] As stated beforehand, respondent
Dra. Gutierrez failed to observe the proper 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 patients neck and oral area, defects which would have
been easily overcome by a prior knowledge of those variations together with a change in technique. [71] In
other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation,
would have had little difficulty going around the short neck and protruding teeth.[72] Having failed to
observe common medical standards in pre-operative management and intubation, respondent Dra.
Gutierrez negligence resulted in cerebral anoxia and eventual coma of Erlinda.
 We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical
team. As the so-called captain of the ship,[73] it is the surgeons responsibility to see to it that those under
him perform their task in the proper manner. Respondent Dr. Hosakas negligence can be found in his
failure to exercise the proper authority (as the captain of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient.Furthermore,
it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital
at the same time as Erlindas cholecystectomy, and was in fact over three hours late for the latters
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient.Thus,
he shares equal responsibility for the events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting consultants, [74] who are
allegedly not hospital employees, presents problems in apportioning responsibility for negligence in
medical malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in
the conduct of their work within the hospital premises. Doctors who apply for consultant slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject the
application.[75]This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to
attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege
of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses,
interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
consultant staff. While consultants are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of
allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioners
condition.[76]
The basis for holding an employer solidarily responsible for the negligence of its employee is found
in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also
for those of others based on the formers responsibility under a relationship of patria potestas.[77] Such
responsibility ceases when the persons or entity concerned prove that they have observed the diligence
of a good father of the family to prevent damage.[78] In other words, while the burden of proving
negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they observed the diligence of a good
father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father
of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the
degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of
a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of
Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its
physicians for Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 2176 [79] of the Civil Code.
 We now come to the amount of damages due petitioners. The trial court awarded a total
of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, subject to its
being updated covering the period from 15 November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of home-based care for a comatose individual.The
calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the
patient. What it reflected were the actual expenses incurred and proved by the petitioners after they
were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet
minimum standards of care. In the instant case for instance, Erlinda has to be constantly turned from
side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food
preparation should be normally made by a dietitian to provide her with the correct daily caloric
requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical
therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the
family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the
Civil Code on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered
by him as he has duly proved. The Civil Code provides:

Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate compensation only
for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual
or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those situations, as in this case, where
the resulting injury might be continuing and possible future complications directly arising from the injury,
while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and
proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty. [80] In other words, temperate damages
can and should be awarded on top of actual or compensatory damages in instances where the injury is
chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when
both actual and temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable - and certainly not in the best interests of the administration of justice -
for the victim in such cases to constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded - temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative, should
take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now
much more in step with the interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally specializes in such
care. They should not be compelled by dire circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an
award of P1,500,000.00 in temperate damages would therefore be reasonable. [81]
In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a situation where the injury
suffered by the plaintiff would have led to expenses which were difficult to estimate because while they
would have been a direct result of the injury (amputation), and were certain to be incurred by the
plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that
case.
 Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left
lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left extremity, even with the use of
state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid
for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of her lower limb effected by the biological
changes of middle-age, menopause and aging. Assuming she reaches menopause, for example,
the prosthetic will have to be adjusted to respond to the changes in bone resulting from a
precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In
other words, the damage done to her would not only be permanent and lasting, it would also be
permanently changing and adjusting to the physiologic changes which her body
would normally undergo through the years. The replacements, changes, and adjustments will
require corresponding adjustive physical and occupational therapy. All of these adjustments, it
has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are forever
lost.The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are
inestimable.[83]
The injury suffered by Erlinda as a consequence of private respondents negligence is certainly much
more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now. The burden of care has so far been heroically shouldered by
her husband and children, who, in the intervening years have been deprived of the love of a wife and a
mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be
virtually impossible to quantify. Even the temperate damages herein awarded would be inadequate if
petitioners condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual injury would not even scratch
the surface of the resulting moral damage because it would be highly speculative to estimate the amount
of emotional and moral pain, psychological damage and injury suffered by the victim or those actually
affected by the victims condition.[84] The husband and the children, all petitioners in this case, will have to
live with the day to day uncertainty of the patients illness, knowing any hope of recovery is close to
nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term
goals to take into account their life with a comatose patient. They, not the respondents, are charged with
the moral responsibility of the care of the victim. The familys moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be
appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the opinion that attorneys fees
valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally cause injury or death to their patients.However,
intent is immaterial in negligence cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physicians experience with his patients would sometimes tempt him to
deviate from established community practices, and he may end a distinguished career using unorthodox
methods without incident. However, when failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure and a nexus is made between the
deviation and the injury or damage, the physician would necessarily be called to account for it. In the
case at bar, the failure to observe 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 attorneys fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.

DECISION

VILLARAMA, JR., J.:

Challenged in this petition for review on certiorari is the Decision[1] dated June 15, 2004 as well as the
Resolution[2] dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which
modified the Decision[3] dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8 in
Civil Case No. 8904.

The factual antecedents:

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass
located in her lower extremity at the St. Lukes Medical Center (SLMC).Results showed that Angelica was
suffering from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant) cancer of the bone
which usually afflicts teenage children.Following this diagnosis and as primary intervention, Angelicas
right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to
eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the
disease from spreading to other parts of the patients body ( metastasis), chemotherapy was suggested by
Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a
medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just
eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy
regimen. Because SLMC refused to release a death certificate without full payment of their hospital bill,
respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory
at Camp Crame for post-mortem examination. The Medico-Legal Report issued by said institution
indicated the cause of death as Hypovolemic shock secondary to multiple organ hemorrhages and
Disseminated Intravascular Coagulation.[5]

On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of death as follows:

Immediate cause : a. Osteosarcoma, Status Post AKA

Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit [7] against petitioner, Dr. Leo Marbella, Mr. Jose
Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of
Angelicas safety, health and welfare by their careless administration of the chemotherapy drugs, their
failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet
decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that caused
Angelicas untimely demise. Further, it was specifically averred that petitioner assured the respondents
that Angelica would recover in view of 95% chance of healing with chemotherapy ( Magiging normal na
ang anak nyo basta ma-chemo. 95% ang healing) and when asked regarding the side effects, petitioner
mentioned only slight vomiting, hair loss and weakness ( Magsusuka ng kaunti. Malulugas ang buhok.
Manghihina). Respondents thus claimed that they would not have given their consent to chemotherapy
had petitioner not falsely assured them of its side effects.

In her answer,[8] petitioner denied having been negligent in administering the chemotherapy drugs to
Angelica and asserted that she had fully explained to respondents how the chemotherapy will affect not
only the cancer cells but also the patients normal body parts, including the lowering of white and red
blood cells and platelets. She claimed that what happened to Angelica can be attributed to malignant
tumor cells possibly left behind after surgery. Few as they may be, these have the capacity to compete
for nutrients such that the body becomes so weak structurally (cachexia) and functionally in the form of
lower resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a
chain of events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate courts had to
rely on testimonial evidence, principally the declarations of petitioner and respondents themselves. The
following chronology of events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed
with them Angelicas condition. Petitioner told respondents that Angelica should be given two to three
weeks to recover from the operation before starting chemotherapy. Respondents were apprehensive due
to financial constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry
and watch repairing business.[9] Petitioner, however, assured them not to worry about her professional
fee and told them to just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed, there
are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean
out the small lesions in order to lessen the chance of the cancer to recur. She did not give the
respondents any assurance that chemotherapy will cure Angelicas cancer. During these consultations with
respondents, she explained the following side effects of chemotherapy treatment to respondents: (1)
falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red
blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas ovary; (6) damage to
the heart and kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually
talked with respondents four times, once at the hospital after the surgery, twice at her clinic and the
fourth time when Angelicas mother called her through long distance. [10] This was disputed by
respondents who countered that petitioner gave them assurance that there is 95% chance of healing for
Angelica if she undergoes chemotherapy and that the only side effects were nausea, vomiting and hair
loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by petitioner. [12]

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after
two or three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with
them the results of the laboratory tests requested by petitioner: Angelicas chest x-ray, ultrasound of the
liver, creatinine and complete liver function tests.[13] Petitioner proceeded with the chemotherapy by first
administering hydration fluids to Angelica.[14]

The following day, August 19, petitioner began administering three chemotherapy drugs
Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] intravenously. Petitioner was supposedly assisted by her
trainees Dr. Leo Marbella[18] and Dr. Grace Arriete.[19] In his testimony, Dr. Marbella denied having any
participation in administering the said chemotherapy drugs.[20]

On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on
Angelicas face.[21] They asked petitioner about it, but she merely quipped, Wala yan. Epekto ng
gamot.[22] Petitioner recalled noticing the skin rashes on the nose and cheek area of Angelica. At that
moment, she entertained the possibility that Angelica also had systemic lupus and consulted Dr. Victoria
Abesamis on the matter.[23]

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus
provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face had
extended to her neck, but petitioner dismissed it again as merely the effect of medicines. [24] Petitioner
testified that she did not see any discoloration on Angelicas face, nor did she notice any difficulty in the
childs breathing. She claimed that Angelica merely complained of nausea and was given ice chips. [25]

On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not
anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner
supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng
chemo. At this point, respondents asked petitioners permission to bring their child home. Later in the
evening, Angelica passed black stool and reddish urine.[26] Petitioner countered that there was no record
of blackening of stools but only an episode of loose bowel movement (LBM). Petitioner also testified that
what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents
call it (petitioner described it in the vernacular as naninigas ang kamay at paa). She then requested for a
serum calcium determination and stopped the chemotherapy. When Angelica was given calcium
gluconate, the spasm and numbness subsided.[27]

The following day, August 23, petitioner yielded to respondents request to take Angelica home.
But prior to discharging Angelica, petitioner requested for a repeat serum calcium determination and
explained to respondents that the chemotherapy will be temporarily stopped while she observes
Angelicas muscle twitching and serum calcium level.Take-home medicines were also prescribed for
Angelica, with instructions to respondents that the serum calcium test will have to be repeated after
seven days. Petitioner told respondents that she will see Angelica again after two weeks, but respondents
can see her anytime if any immediate problem arises.[28]

However, Angelica remained in confinement because while still in the premises of SLMC, her
convulsions returned and she also had LBM. Angelica was given oxygen and administration of calcium
continued.[29]

The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They
also noticed that she had a fever and had difficulty breathing. [30]Petitioner insisted it was carpo-pedal
spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica developed difficulty in
breathing and had fever. She then requested for an electrocardiogram analysis, and infused calcium
gluconate on the patient at a stat dose. She further ordered that Angelica be given Bactrim,[31] a synthetic
antibacterial combination drug,[32] to combat any infection on the childs body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her
anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner
replied, Bagsak ang platelets ng anak mo. Four units of platelet concentrates were then transfused to
Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was high and her white blood
cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of
packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two
days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and
in frequency. Petitioner also denied that there were gadgets attached to Angelica at that time. [34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots
that should not be removed. Respondents claimed that Angelica passed about half a liter of blood
through her anus at around seven oclock that evening, which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric
tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica
also revealed a bloody content. Angelica was given more platelet concentrate and fresh whole blood,
which petitioner claimed improved her condition.Petitioner told Angelica not to remove the endotracheal
tube because this may induce further bleeding.[35] She was also transferred to the intensive care unit to
avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body
turned black. Part of Angelicas skin was also noted to be shredding by just rubbing cotton on it. Angelica
was so restless she removed those gadgets attached to her, saying Ayaw ko na; there were tears in her
eyes and she kept turning her head. Observing her daughter to be at the point of death, Lina asked for a
doctor but the latter could not answer her anymore. [36] At this time, the attending physician was Dr.
Marbella who was shaking his head saying that Angelicas platelets were down and respondents should
pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his
daughters case, Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have
difficulty in her breathing and blood was being suctioned from her stomach. A nurse was posted inside
Angelicas room to assist her breathing and at one point they had to revive Angelica by pumping her
chest. Thereafter, Reynaldo claimed that Angelica already experienced difficulty in urinating and her
bowel consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital
staff attempted to take blood samples from Angelica but were unsuccessful because they could not even
locate her vein. Angelica asked for a fruit but when it was given to her, she only smelled it. At this time,
Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night, Angelica became
hysterical and started removing those gadgets attached to her. At three oclock in the morning of
September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was malfunction or bogged-down machine.[37]

By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted
though that Angelicas skin was indeed sloughing off.[38] She stressed that at 9:30 in the evening,
Angelica pulled out her endotracheal tube.[39] On September 1, exactly two weeks after being admitted
at SLMC for chemotherapy, Angelica died.[40]The cause of death, according to petitioner, was septicemia,
or overwhelming infection, which caused Angelicas other organs to fail. [41] Petitioner attributed this to
the patients poor defense mechanism brought about by the cancer itself. [42]
 While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that
petitioner acted arrogantly and called him names. He was asked to sign a promissory note as he did not
have cash to pay the hospital bill.[43]

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the
PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara
Balmaceda who is a Medical Specialist employed at the Department of Health (DOH) Operations and
Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1)
there were fluids recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic
shock secondary to bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the
upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back
and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys
showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface
of the spleen. All these were the end result of hypovolemic shock secondary to multiple organ
hemorrhages and disseminated intravascular coagulation. Dr. Vergara opined that this can be attributed
to the chemical agents in the drugs given to the victim, which caused platelet reduction resulting to
bleeding sufficient to cause the victims death. The time lapse for the production of DIC in the case of
Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3
years. The witness conceded that the victim will also die of osteosarcoma even with amputation or
chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted
that she is not a pathologist but her statements were based on the opinion of an oncologist whom she
had interviewed. This oncologist supposedly said that if the victim already had DIC prior to the
chemotherapy, the hospital staff could have detected it.[44]

On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the
patient or his relatives every known side effect of the procedure or therapeutic agents to be
administered, before securing the consent of the patient or his relatives to such procedure or
therapy. The physician thus bases his assurance to the patient on his personal assessment of the patients
condition and his knowledge of the general effects of the agents or procedure that will be allowed on the
patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all known side effects
based on studies and observations, even if such will aggravate the patients condition. [45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified
for the defendants. He explained that in case of malignant tumors, there is no guarantee that the
ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is not
enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early diagnosis still
remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other vital
organs like the liver, causing systemic complications. The modes of therapy available are the removal of
the primary source of the cancerous growth and then the residual cancer cells or metastasis should be
treated with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor
defense mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had
previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that
metastasis of these cancer cells will hopefully be addressed. He referred the patient to petitioner because
he felt that petitioner is a competent oncologist. Considering that this type of cancer is very aggressive
and will metastasize early, it will cause the demise of the patient should there be no early
intervention (in this case, the patient developed sepsis which caused her death). Cancer cells in
the blood cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr.
Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he
thought that probably all of them died within six months from amputation because he did not see them
anymore after follow-up; it is either they died or had seen another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she
observed the best known procedures and employed her highest skill and knowledge in the administration
of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr.
Tamayo who testified that he considered petitioner one of the most proficient in the treatment of cancer
and that the patient in this case was afflicted with a very aggressive type of cancer necessitating
chemotherapy as adjuvant treatment. Using the standard of negligence laid down in Picart v.
Smith,[47] the trial court declared that petitioner has taken the necessary precaution against the adverse
effect of chemotherapy on the patient, adding that a wrong decision is not by itself
negligence. Respondents were ordered to pay their unpaid hospital bill in the amount of P139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trial courts finding that there was no
negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica,
found that petitioner as her attending physician failed to fully explain to the respondents all the known
side effects of chemotherapy. The appellate court stressed that since the respondents have been told of
only three side effects of chemotherapy, they readily consented thereto. Had petitioner made known to
respondents those other side effects which gravely affected their child -- such as carpo-pedal spasm,
sepsis, decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could
have decided differently or adopted a different course of action which could have delayed or prevented
the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The attending physician
recommended that she undergo chemotherapy treatment after surgery in order to increase her
chances of survival. Appellants consented to the chemotherapy treatment because they believed
in Dr. Rubi Lis representation that the deceased would have a strong chance of survival after
chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only
three possible side-effects of the treatment. However, all sorts of painful side-effects resulted
from the treatment including the premature death of Angelica. The appellants were clearly
and totally unaware of these other side-effects which manifested only during the
chemotherapy treatment. This was shown by the fact that every time a problem
would take place regarding Angelicas condition (like an unexpected side-effect
manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely,
those unexpected side-effects culminating in the loss of a love[d] one caused the appellants so
much trouble, pain and suffering.

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle
plaintiffs-appellants to their claim for damages.

xxxx

WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby
modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-
appellants the following amounts:

1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

2. Moral damages of P200,000.00;

3. Exemplary damages of P50,000.00;

 4. Attorneys fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition. Petitioner assails the CA in finding her guilty of negligence in not explaining to the
respondents all the possible side effects of the chemotherapy on their child, and in holding her liable for
actual, moral and exemplary damages and attorneys fees. Petitioner emphasized that she was not
negligent in the pre-chemotherapy procedures and in the administration of chemotherapy treatment to
Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner
argues that it was foolhardy to imagine her to be all-knowing/omnipotent.While the theoretical side
effects of chemotherapy were explained by her to the respondents, as these should be known to a
competent doctor, petitioner cannot possibly predict how a particular patients genetic make-up, state of
mind, general health and body constitution would respond to the treatment. These are obviously
dependent on too many known, unknown and immeasurable variables, thus requiring that Angelica be,
as she was, constantly and closely monitored during the treatment. Petitioner asserts that she did
everything within her professional competence to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current position as co-
director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends
that in the absence of any clear showing or proof, she cannot be charged with negligence in not
informing the respondents all the side effects of chemotherapy or in the pre-treatment procedures done
on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis
which is a complication of the cancer itself. Sepsis itself leads to bleeding and death. She explains that
the response rate to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is
favorable to the patient. Petitioner then points to some probable consequences if Angelica had not
undergone chemotherapy. Thus, without chemotherapy, other medicines and supportive treatment, the
patient might have died the next day because of massive infection, or the cancer cells might have spread
to the brain and brought the patient into a coma, or into the lungs that the patient could have been
hooked to a respirator, or into her kidneys that she would have to undergo dialysis. Indeed, respondents
could have spent as much because of these complications. The patient would have been deprived of the
chance to survive the ailment, of any hope for life and her quality of life surely compromised. Since she
had not been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the
damages suffered by the respondents.[50]

The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious
side effects to the parents of the child patient who died while undergoing chemotherapy, despite the
absence of finding that petitioner was negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical
negligence, is that type of claim which a victim has available to him or her to redress a wrong committed
by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a
patient must prove that a health care provider, in most cases a physician, either failed to do something
which a reasonably prudent health care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that that failure or action caused injury to the
patient.[51]

This Court has recognized that medical negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians
stems from the formers realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies. [52]

In this case, both the trial and appellate courts concurred in finding that the alleged negligence of
petitioner in the administration of chemotherapy drugs to respondents child was not proven considering
that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not qualified to give
expert opinion as to whether petitioners lack of skill, knowledge and professional competence in failing to
observe the standard of care in her line of practice was the proximate cause of the patients
death. Furthermore, respondents case was not at all helped by the non-production of medical records by
the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA
found petitioner liable for her failure to inform the respondents on all possible side effects of
chemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient relationships goes far back into
English common law. As early as 1767, doctors were charged with the tort of battery (i.e., an
unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to
performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of
New York Hospital[53] which involved unwanted treatment performed by a doctor. Justice Benjamin
Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure
or treatment: Every human being of adult years and sound mind has a right to determine what shall be
done with his own body; and a surgeon who performs an operation without his patients consent,
commits an assault, for which he is liable in damages. [54] From a purely ethical norm, informed consent
evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent
physician in the medical community in the exercise of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient,
exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably
balancing the probable risks against the probable benefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not be
limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect
for the patients right of self-determination on particular therapy demands a standard set by law for
physicians rather than one which physicians may or may not impose upon themselves.[57] The scope of
disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical
sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians responsibility. It is
also his duty to warn of the dangers lurking in the proposed treatment and to impart information which
the patient has every right to expect. Indeed, the patients reliance upon the physician is a trust of the
kind which traditionally has exacted obligations beyond those associated with armslength
transactions.[58] The physician is not expected to give the patient a short medical education, the
disclosure rule only requires of him a reasonable explanation, which means generally informing the
patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals
expectably to be achieved, and the risks that may ensue from particular treatment or no treatment. [59] As
to the issue of demonstrating what risks are considered material necessitating disclosure, it was held that
experts are unnecessary to a showing of the materiality of a risk to a patients decision on treatment, or
to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should
have been made known must further materialize, for otherwise the omission, however unpardonable, is
without legal consequence.And, as in malpractice actions generally, there must be a causal relationship
between the physicians failure to divulge and damage to the patient. [60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physicians
overall obligation to patient, the duty of reasonable disclosure of available choices with respect to
proposed therapy and of dangers inherently and potentially involved in each. However, the physician is
not obliged to discuss relatively minor risks inherent in common procedures when it is common
knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule
that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are
emergency cases where it is evident he cannot evaluate data, and where the patient is a child or
incompetent.[62] The court thus concluded that the patients right of self-decision can only be effectively
exercised if the patient possesses adequate information to enable him in making an intelligent
choice. The scope of the physicians communications to the patient, then must be measured by the
patients need, and that need is whatever information is material to the decision. The test therefore for
determining whether a potential peril must be divulged is its materiality to the patients decision.[63]

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the
physician for failure to inform patient, there must be causal relationship between physicians failure to
inform and the injury to patient and such connection arises only if it is established that, had revelation
been made, consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine
of informed consent: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the
patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured
by the proposed treatment. The gravamen in an informed consent case requires the plaintiff to point to
significant undisclosed information relating to the treatment which would have altered her decision to
undergo it.[64]

Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent
in the chemotherapy procedure performed with the consent of Angelicas parents. Respondents could not
have been unaware in the course of initial treatment and amputation of Angelicas lower extremity, that
her immune system was already weak on account of the malignant tumor in her knee. When petitioner
informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts
of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin
darkening, there is reasonable expectation on the part of the doctor that the respondents understood
very well that the severity of these side effects will not be the same for all patients undergoing the
procedure. In other words, by the nature of the disease itself, each patients reaction to the chemical
agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the underlying cancer itself, immediately
or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with
most other major medical procedures, but such conclusion can be reasonably drawn from the general
side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have considered the variables in the
recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it
is difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for
their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such
as cancer to have falsely assured patients of chemotherapys success rate. Besides, informed consent
laws in other countries generally require only a reasonable explanation of potential harms, so specific
disclosures such as statistical data, may not be legally necessary.[65]

The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be
reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action
based on lack of informed consent, the plaintiff must prove both the duty and the breach of that duty
through expert testimony.[66] Such expert testimony must show the customary standard of care of
physicians in the same practice as that of the defendant doctor. [67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the
DOHs Operational and Management Services charged with receiving complaints against hospitals, does
not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy
treatment. In the absence of expert testimony in this regard, the Court feels hesitant in defining the
scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a
standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one.

As society has grappled with the juxtaposition between personal autonomy and the medical
profession's intrinsic impetus to cure, the law defining adequate disclosure has undergone a
dynamic evolution. A standard once guided solely by the ruminations of physicians is now
dependent on what a reasonable person in the patients position regards as significant. This
change in perspective is especially important as medical breakthroughs move practitioners to the
cutting edge of technology, ever encountering new and heretofore unimagined treatments for
currently incurable diseases or ailments. An adaptable standard is needed to account for this
constant progression. Reasonableness analyses permeate our legal system for the very reason
that they are determined by social norms, expanding and contracting with the ebb and flow of
societal evolution.

As we progress toward the twenty-first century, we now realize that the legal standard of
disclosure is not subject to construction as a categorical imperative. Whatever formulae
or processes we adopt are only useful as a foundational starting point; the particular quality
or quantity of disclosure will remain inextricably bound by the facts of each
case. Nevertheless, juries that ultimately determine whether a physician properly informed a
patient are inevitably guided by what they perceive as the common expectation of the medical
consumera reasonable person in the patients position when deciding to accept or reject a
recommended medical procedure.[68] (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision

dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-
G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case
No. 8904 is REINSTATED and UPHELD. No costs. SO ORDERED

SECOND DIVISION
 G.R. No. 171127, March 11, 2015

NOEL CASUMPANG, RUBY SANGA-MIRANDA AND SAN JUAN DE DIOS

HOSPITAL, Petitioners, v.NELSON CORTEJO, Respondent.

[G.R. No. 171217]

DRA. RUBY SANGA-MIRANDA, Petitioner, v. NELSON CORTEJO, Respondent.

[G.R. No. 171228]

SAN JUAN DE DIOS HOSPITAL, Petitioner, v. NELSON CORTEJO, Respondent.

DECISION

BRION, J.:

We resolve the three (3) consolidated petitions for review on certiorari1 involving medical negligence,
commonly assailing the October 29, 2004 decision2 and the January 12, 2006 resolution3 of the Court of
Appeals (CA) in CA-G.R. CV No. 56400. This CA decision affirmed en toto the ruling of the Regional Trial
Court (RTC), Branch 134, Makati City.

The RTC awarded Nelson Cortejo (respondent) damages in the total amount of P595,000.00, for the
wrongful death of his son allegedly due to the medical negligence of the petitioning doctors and the
hospital.

Factual Antecedents

The common factual antecedents are briefly summarized below.

On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11-year old son,
Edmer Cortejo (Edmer), to the Emergency Room of the San Juan de Dios Hospital (SJDH) because of
difficulty in breathing, chest pain, stomach pain, and fever.4

Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her testimony, Mrs. Cortejo
narrated that in the morning of April 20, 1988, Edmer had developed a slight fever that lasted for one
day; a few hours upon discovery, she brought Edmer to their family doctor; and two hours after
administering medications, Edmer's fever had subsided.5

After taking Edmer's medical history, Dr. Livelo took his vital signs, body temperature, and blood
pressure.6 Based on these initial examinations and the chest x-ray test that followed, Dr. Livelo diagnosed
Edmer with "bronchopneumonia."7 Edmer's blood was also taken for testing, typing, and for purposes of
administering antibiotics. Afterwards, Dr. Livelo gave Edmer an antibiotic medication to lessen his fever
and to loosen his phlegm.

Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was referred to an
accredited Fortune Care coordinator, who was then out of town. She was thereafter assigned to Dr. Noel
Casumpang (Dr. Casumpang), a pediatrician also accredited with Fortune Care.8

At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined Edmer in his room.
Using only a stethoscope, he confirmed the initial diagnosis of " Bronchopneumonia."9

At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor's diagnosis. She immediately
advised Dr. Casumpang that Edmer had a high fever, and had no colds or cough10 but Dr. Casumpang
merely told her that her son's "bloodpressure is just being active,"11 and remarked that "that's the usual
bronchopneumonia, no colds, no phlegm."12

Dr. Casumpang next visited and examined Edmer at 9:00 in the morning the following day. 13 Still
suspicious about his son's illness, Mrs. Cortejo again called Dr. Casumpang's attention and stated that
Edmer had a fever, throat irritation, as well as chest and stomach pain. Mrs. Cortejo also alerted Dr.
Casumpang about the traces of blood in Edmer's sputum. Despite these pieces of information, however,
Dr. Casumpang simply nodded, inquired if Edmer has an asthma, and reassured Mrs. Cortejo that
Edmer's illness is bronchopneumonia.14

At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood streak" 15prompting
the respondent (Edmer's father) to request for a doctor at the nurses' station.16
Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the resident physicians of SJDH,
arrived. She claimed that although aware that Edmer had vomited "phlegm with blood streak," she failed
to examine the blood specimen because the respondent washed it away. She then advised the
respondent to preserve the specimen for examination.

Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's head, eyes, nose, throat, lungs,
skin and abdomen; and found that Edmer had a low-grade non-continuing fever, and rashes that were
not typical of dengue fever.17 Her medical findings state:
the patient's rapid breathing and then the lung showed sibilant and the patient's nose is flaring which is a
sign that the patient is in respiratory distress; the abdomen has negative finding; the patient has low
grade fever and not continuing; and the rashes in the patient's skin were not "Herman's Rash" and not
typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Miranda, the respondent
showed her Edmer's blood specimen, and reported that Edmer had complained of severe stomach pain
and difficulty in moving his right leg.19

Dr. Miranda then examined Edmer's "sputum with blood" and noted that he was bleeding. Suspecting
that he could be afflicted with dengue, she inserted a plastic tube in his nose, drained the liquid from his
stomach with ice cold normal saline solution, and gave an instruction not to pull out the tube, or give the
patient any oral medication.

Dr. Miranda thereafter conducted a tourniquet test, which turned out to be negative.20 She likewise
ordered the monitoring of the patient's blood pressure and some blood tests. Edmer's blood pressure was
later found to be normal.21

At 4:40 in the afternoon, Dr. Miranda called up Dr. Casumpang at his clinic and told him about Edmer's
condition.22 Upon being informed, Dr. Casumpang ordered several procedures done
including: hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests .

The blood test results came at about 6:00 in the evening.

Dr. Miranda advised Edmer's parents that the blood test results showed that Edmer was suffering from
"Dengue Hemorrhagic Fever." One hour later, Dr. Casumpang arrived at Edmer's room and he
recommended his transfer to the Intensive Care Unit (ICU), to which the respondent consented. Since
the ICU was then full, Dr. Casumpang suggested to the respondent that they hire a private nurse. The
respondent, however, insisted on transferring his son to Makati Medical Center.

After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked Edmer's
condition, found that his blood pressure was stable, and noted that he was "comfortable." The
respondent requested for an ambulance but he was informed that the driver was nowhere to be found.
This prompted him to hire a private ambulance that cost him P600.00.23

At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred to Makati
Medical Center.

Dr. Casumpang immediately gave the attending physician the patient's clinical history and laboratory
exam results. Upon examination, the attending physician diagnosed "Dengue Fever Stage IV" that was
already in its irreversible stage.

Edmer died at 4:00 in the morning of April 24, 1988.24 His Death Certificate indicated the cause of death
as "Hypovolemic Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."

Believing that Edmer's death was caused by the negligent and erroneous diagnosis of his doctors, the
respondent instituted an action for damages against SJDH, and its attending physicians: Dr. Casumpang
and Dr. Miranda (collectively referred to as the "petitioners") before the RTC of Makati City.

The Ruling of the Regional Trial Court

In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and awarded actual and
moral damages, plus attorney's fees and costs.

In ruling that the petitioning doctors were negligent, the RTC found untenable the petitioning doctors'
contention that Edmer's initial symptoms did not indicate dengue fever. It faulted them for heavily relying
on the chest x-ray result and for not considering the other manifestations that Edmer's parents had
relayed. It held that in diagnosing and treating an illness, the physician's conduct should be judged not
only by what he/she saw and knew, but also by what he/she could have reasonably seen and known. It
also observed that based on Edmer's signs and symptoms, his medical history and physical examination,
and also the information that the petitioning doctors gathered from his family members , dengue fever
was a reasonably foreseeable illness; yet, the petitioning doctors failed to take a second look, much less,
consider these indicators of dengue.

The trial court also found that aside from their self-serving testimonies, the petitioning doctors did not
present other evidence to prove that they exercised the proper medical attention in diagnosing and
treating the patient, leading it to conclude that they were guilty of negligence.

The RTC also held SJDH solidarity liable with the petitioning doctors for damages based on the following
findings of facts: first, Dr. Casumpang, as consultant, is an ostensible agent of SJDH because before
the hospital engaged his medical services, it scrutinized and determined his fitness, qualifications, and
competence as a medical practitioner; and second, Dr. Miranda, as resident physician, is an employee
of SJDH because like Dr. Casumpang, the hospital, through its screening committee, scrutinized and
determined her qualifications, fitness, and competence before engaging her services; the hospital also
exercised control over her work.

The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering
the latter to pay solidarity and severally plaintiff the following:

�� �(1) Moral damages in the amount of P500,000.00;

�� �(2) Costs of burial and funeral in the amount of P45,000.00;

�� �(3) Attorney's fees of P50,000.00; and

�� �(4) Cost of this suit.

SO ORDERED.
The petitioners appealed the decision to the CA.

The Ruling of the Court of Appeals

In its decision dated October 29, 2004, the CA affirmed en toto the RTC's ruling, finding that SJDH and its
attending physicians failed to exercise the minimum medical care, attention, and treatment expected of
an ordinary doctor under like circumstances.

The CA found the petitioning doctors' failure to read even the most basic signs of " dengue fever"
expected of an ordinary doctor as medical negligence. The CA also considered the petitioning doctors'
testimonies as self-serving, noting that they presented no other evidence to prove that they exercised
due diligence in diagnosing Edmer's illness.

The CA likewise found Dr. Rodolfo Jaudian's ( Dr. Jaudian) testimony admissible. It gave credence to his
opinion26 that: (1) given the exhibited symptoms of the patient, dengue fever should definitely be
considered, and bronchopneumonia could be reasonably ruled out; and (2) dengue fever could have been
detected earlier than 7:30 in the evening of April 23, 1988 because the symptoms were already evident;
and agreed with the RTC that the petitioning doctors should not have solely relied on the chest-x-ray
result, as it was not conclusive.

On SJDH's solidary liability, the CA ruled that the hospital's liability is based on Article 2180 of the Civil
Code. The CA opined that the control which the hospital exercises over its consultants, the hospital's
power to hire and terminate their services, all fulfill the employer-employee relationship requirement
under Article 2180.

Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the diligence of a good
father of a family in the hiring and the supervision of its physicians.

The petitioners separately moved to reconsider the CA decision, but the CA denied their motion in its
resolution of January 12, 2006; hence, the present consolidated petitions pursuant to Rule 45 of the
Rules of Court.

The Petitions
I. Dr. Casumpang's Position (G.R. No. 171127)

Dr. Casumpang contends that he gave his patient medical treatment and care to the best of his abilities,
and within the proper standard of care required from physicians under similar circumstances. He claims
that his initial diagnosis of bronchopneumonia was supported by the chest x-ray result.

Dr. Casumpang also contends that dengue fever occurs only after several days of confinement. He
alleged that when he had suspected that Edmer might be suffering from dengue fever, he immediately
attended and treated him.

Dr. Casumpang likewise raised serious doubjs on Dr. Jaudian's credibility, arguing that the CA erred in
appreciating his testimony as an expert witness since he lacked the necessary training, skills, and
experience as a specialist in dengue fever cases.

II. Dr. Miranda's Position (G.R. No. 171217)

In her petition, Dr. Miranda faults the CA for holding her responsible for Edmer's wrong diagnosis,
stressing that the function of making the diagnosis and undertaking the medical treatment devolved upon
Dr. Casumpang, the doctor assigned to Edmer, and who confirmed "bronchopneumonia."

Dr. Miranda also alleged that she exercised prudence in performing her duties as a physician,
underscoring that it was her professional intervention that led to the correct diagnosis of "Dengue
Hemorrhagic Fever." Furthermore, Edmer's Complete Blood Count (CBC) showed leukopenia and an
increase in balance as shown by the differential count, demonstrating that Edmer's infection, more or
less, is of bacterial and not viral in nature.

Dr. Miranda as well argued that there is no causal relation between the alleged erroneous diagnosis and
medication for "Bronchopneumonia," and Edmer's death due to "Dengue Hemorrhagic Fever."

Lastly, she claimed that Dr. Jaudian is not a qualified expert witness since he never presented any
evidence of formal residency training and fellowship status in Pediatrics.

III. SJDH's Position (G.R. No. 171228)

SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr. Miranda are mere
independent contractors and "consultants" (not employees) of the hospital. SJDH alleges that since it did
not exercise control or supervision over the consultants' exercise of medical profession, there is no
employer-employee relationship between them, and consequently, Article 2180 of the Civil Code does not
apply.

SJDH likewise anchored the absence of, employer-employee relationship on the following circumstances:
(1) SJDH does not hire consultants; it only grants them privileges to admit patients in the hospital
through accreditation; (2) SJDH does not pay the consultants wages similar to an ordinary employee; (3)
the consultants earn their own professional fees directly from their patients; SJDH does not fire or
terminate their services; and (4) SJDH does not control or interfere with the manner and the means the
consultants use in the treatment of their patients. It merely provides them with adequate space in
exchange for rental payment.

Furthermore, SJDH claims that the CA erroneously applied the control test when it treated the hospital's
practice of accrediting consultants as an exercise of control. It explained that the control contemplated by
law is that which the employer exercises over the: (i) end result; and the (ii) manner and means to be
used to reach this end, and not any kind of control, however significant, in accrediting the consultants.

SJDH moreover contends that even if the petitioning doctors are considered employees and not merely
consultants of the hospital, SJDH cannot still be held solidarity liable under Article 2180 of the Civil Code
because it observed the diligence of a good father of a family in their selection and supervision as shown
by the following: (1) the adequate measures that the hospital undertakes to ascertain the petitioning
doctors' qualifications and medical competence; and (2) the documentary evidence that the petitioning
doctors presented to prove their competence in the field of pediatrics.27

SJDH likewise faults the CA for ruling that the petitioning doctors are its agents, claiming that this theory,
aside from being inconsistent with the CA's finding of employment relationship, is unfounded
because: first, the petitioning doctors are independent contractors, not agents of SJDH; and second, as a
medical institution, SJDH cannot practice medicine, much more, extend its personality to physicians to
practice medicine on its behalf.

Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced and correct
diagnosis. It claimed that based on Edmer's signs and symptoms at the time of admission (i.e., one day
fever,28bacterial infection,29 and lack of hemorrhagic manifestations30), there was no reasonable
indication yet that he was suffering from dengue fever, and accordingly, their failure to diagnose dengue
fever, does not constitute negligence on their part.

The Case for the Respondent

In his comment, the respondent submits that the issues the petitioners raised are mainly factual in
nature, which a petition for review on certiorari under Rule 45 of the Rules of Court does not allow.

In any case, he contends that the petitioning doctors were negligent in conducting their medical
examination and diagnosis based on the following: (1) the petitioning doctors failed to timely diagnose
Edmer's correct illness due to their non-observance of the proper and acceptable standard of medical
examination; (2) the petitioning doctors' medical examination was not comprehensive, as they were
always in a rush; and (3) the petitioning doctors employed a guessing game in diagnosing
bronchopneumonia.

The respondent also alleges that there is a causal connection between the petitioning doctors' negligence
and Edmer's untimely death, warranting the claim for damages.

The respondent, too, asserted that SJDH is also negligent because it was not equipped with proper
paging system, has no bronchoscope, and its doctors are not proportionate to the number of its patients.
He also pointed out that out of the seven resident physicians in the hospital, only two resident physicians
were doing rounds at the time of his son's confinement.

The Issues

The case presents to us the following issues:

1. Whether or not the petitioning doctors had committed "inexcusable lack of precaution" in
diagnosing and in treating the patient;

2. Whether or not the petitioner hospital is solidarity liable with the petitioning doctors;

3. Whether or not there is a causal connection between the petitioners' negligent act/omission and
the patient's resulting death; and

4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian as an
expert witness.

Our Ruling

We find the petition partly meritorious.

A Petition for Review on Certiorari under Rule 45 of the Rules of Court is Limited to
Questions of Law.

The settled rule is that the Court's jurisdiction in a petition for review on certiorari under Rule 45 of the
Rules of Court is limited only to the review of pure questions of law. It is not the Court's function to
inquire on the veracity of the appellate court's factual findings and conclusions; this Court is not a trier of
facts.31

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there
is a question of fact when the doubt arises as to the truth or falsity of the alleged facts.32

These consolidated petitions before us involve mixed questions of fact and law. As a rule, we do not
resolve questions of fact. However, in determining the legal question of whether the respondent is
entitled to claim damages under Article 2176 of the Civil Code for the petitioners' alleged medical
malpractice, the determination of the factual issues - i.e., whether the petitioning doctors were grossly
negligent in diagnosing the patient's illness, whether there is causal relation between the petitioners'
act/omission and the patient's resulting death, and whether Dr. Jaudian is qualified as an expert witness -
must necessarily be resolved. We resolve these factual questions solely for the purpose of determining
the legal issues raised.

Medical Malpractice Suit as a Specialized Area of Tort Law

The claim for damages is based on the petitioning doctors' negligence in diagnosing and treating the
deceased Edmer, the child of the respondent. It is a medical malpractice suit, an action available to
victims to redress a wrong committed by medical professionals who caused bodily harm to, or the death
of, a patient.33 As the term is used, the suit is brought whenever a medical practitioner or health care
provider fails to meet the standards demanded by his profession, or deviates from this standard, and
causes injury to the patient.

To successfully pursue a medical malpractice suit, the plaintiff ( in this case, the deceased patient's heir)
must prove that the doctor either failed to do what a reasonably prudent doctor would have done, or did
what a reasonably prudent doctor would not have done; and the act or omission had caused injury to the
patient.34 The patient's heir/s bears the burden of proving his/her cause of action.

The Elements of a Medical Malpractice Suit

The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate
causation.

Duty refers to the standard of behavior that imposes restrictions on one's conduct. 35 It requires proof of
professional relationship between the physician and the patient. Without the professional relationship, a
physician owes no duty to the patient, and cannot therefore incur any liability.

A physician-patient relationship is created when a patient engages the services of a physician,36 and the
latter accepts or agrees to provide care to the patient. 37 The establishment of this relationship is
consensual,38 and the acceptance by the physician essential. The mere fact that an individual approaches
a physician and seeks diagnosis, advice or treatment does not create the duty of care unless the
physician agrees.39

The consent needed to create the relationship does not always need to be express. 40 In the absence of
an express agreement, a physician-patient relationship may be implied from the physician's affirmative
action to diagnose and/or treat a patient, or in his participation in such diagnosis and/or treatment. 41 The
usual illustration would be the case of a patient who goes to a hospital or a clinic, and is examined and
treated by the doctor. In this case, we can infer, based on the established and customary practice in the
medical community that a patient-physician relationship exists.

Once a physician-patient relationship is established, the legal duty of care follows. The doctor accordingly
becomes duty-bound to use at least the same standard of care that a reasonably competent doctor would
use to treat a medical condition under similar circumstances.

Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under
professional standards. This determination is both factual and legal, and is specific to each individual
case.42

If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is
committed, entitling the patient to damages.43

To successfully claim damages, the patient must lastly prove the causal relation between the negligence
and the injury. This connection must be direct, natural, and should be unbroken by any intervening
efficient causes. In other words, the negligence must be the proximate cause of the injury.44 The
injury or damage is proximately caused by the physician's negligence when it appears, based on the
evidence and the expert testimony, that the negligence played an integral part in causing the injury or
damage, and that the injury or damage was either a direct result, or a reasonably probable consequence
of the physician's negligence.45

a. The Relationship Between Dr. Casumpang and Edmer

In the present case, the physician-patient relationship between Dr. Casumpang and Edmer was created
when the latter's parents sought the medical services of Dr. Casumpang, and the latter knowingly
accepted Edmer as a patient. Dr. Casumpang's acceptance is implied from his affirmative examination,
diagnosis and treatment of Edmer. On the other hand, Edmer's parents, on their son's behalf, manifested
their consent by availing of the benefits of their health care plan, and by accepting the hospital's assigned
doctor without objections.
b. The Relationship Between Dr. Miranda and Edmer

With respect to Dr. Miranda, her professional relationship with Edmer arose when she assumed the
obligation to provide resident supervision over the latter. As second year resident doctor tasked to do
rounds and assist other physicians, Dr. Miranda is deemed to have agreed to the creation of physician-
patient relationship with the hospital's patients when she participated in the diagnosis and prescribed a
course of treatment for Edmer.

The undisputed evidence shows that Dr. Miranda examined Edmer twice ( at around 12:00 and 3:30 in
the afternoon of April 23, 1988), and in both instances, she prescribed treatment and participated in the
diagnosis of Edmer's medical condition. Her affirmative acts amounted to her acceptance of the
physician-patient relationship, and incidentally, the legal duty of care that went with it.

In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely passed by and were
requested to attend to the patient, liable for medical malpractice. It held that a physician-patient
relationship was established when they examined the patient, and later assured the mother that
everything was fine.

In the US case of Mead v. Legacy Health System,47 the Court also considered the rendering of an opinion
in the course of the patient's care as the doctor's assent to the physician-patient relationship. It ruled
that the relationship was formed because of the doctor's affirmative action.

Likewise, in Wax v. Johnson,48 the court found that a physician-patient relationship was formed between
a physician who "contracts, agrees, undertakes, or otherwise assumes" the obligation to provide resident
supervision at a teaching hospital, and the patient with whom the doctor had no direct or indirect
contract.

Standard of Care and Breach of Duty

A determination of whether or not the petitioning doctors met the required standard of care involves a
question of mixed fact and law; it is factual as medical negligence cases are highly technical in nature,
requiring the presentation of expert witnesses to provide guidance to the court on matters clearly falling
within the domain of medical science, and legal, insofar as the Court, after evaluating the expert
testimonies, and guided by medical literature, learned treatises, and its fund of common knowledge,
ultimately determines whether breach of duty took place.

Whether or not Dr. Casumpang and Dr. Miranda committed a breach of duty is to be measured by the
yardstick of professional standards observed by the other members of the medical profession in good
standing under similar circumstances.49 It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the professional standards observed in the medical community, but also
that the physician's conduct in the treatment of care falls below such standard. 50

In the present case, expert testimony is crucial in determining first, the standard medical examinations,
tests, and procedures that the attending physicians should have undertaken in the diagnosis and
treatment of dengue fever; and second, the dengue fever signs and symptoms that the attending
physicians should have noticed and considered.

Both the RTC and the CA relied largely on Dr. Jaudian's expert testimony on dengue diagnosis and
management to support their finding that the petitioning doctors were guilty of breach of duty of care.

Dr. Jaudian testified that Edmer's rapid breathing, chest and stomach pain, fever, and the presence of
blood in his saliva are classic symptoms of dengue fever. According to him, if the patient was admitted
for chest pain, abdominal pain, and difficulty in breathing coupled with fever, dengue fever should
definitely be considered;51 if the patient spits coffee ground with the presence of blood, and the patient's
platelet count drops to 47,000, it becomes a clear case of dengue fever, and bronchopneumonia can be
reasonably ruled out.52

Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen inhalation, analgesic,
and fluid infusion or dextrose.53 If the patient had twice vomited fresh blood and thrombocytopenia has
already occurred, the doctor should order blood transfusion, monitoring of the patient every 30 minutes,
hemostatic to stop bleeding, and oxygen if there is difficulty in breathing .54

We find that Dr. Casumpang, as Edmer's attending physician, did not act according to these
standards and, hence, was guilty of breach of duty. We do not find Dr. Miranda liable for the
reasons discussed below.

Dr. Casumpang's Negligence

a. Negligence in the Diagnosis

At the trial, Dr. Casumpang declared that a doctor's impression regarding a patient's illness is 90% based
on the physical examination, the information given by the patient or the latter's parents, and the patient's
medical history.55 He testified that he did not consider either dengue fever or dengue hemorrhagic fever
because the patient's history showed that Edmer had low breath and voluntary submission, and that he
was up and about playing basketball.56 He based his diagnosis of bronchopneumonia on the following
observations: "difficulty in breathing, clearing run nostril, harsh breath sound, tight air, and sivilant
sound."57

It will be recalled that during Dr. Casumpang's first and second visits to Edmer, he already had
knowledge of Edmer's laboratory test result (CBC), medical history, and symptoms ( i.e., fever, rashes,
rapid breathing, chest and stomach pain, throat irritation, difficulty in breathing, and traces of blood in
the sputum). However, these information did not lead Dr. Casumpang to the possibility that
Edmer could be suffering from either dengue fever, or dengue hemorrhagic fever, as he
clung to his diagnosis of broncho pneumonia. This means that given the symptoms exhibited, Dr.
Casumpang already ruled out the possibility of other diseases like dengue.

In other words, it was lost on Dr. Casumpang that the characteristic symptoms of dengue (as Dr. Jaudian
testified) are: patient's rapid breathing; chest and stomach pain; fever; and the presence of blood in his
saliva. All these manifestations were present and known to Dr. Casumpang at the time of his first and
second visits to Edmer. While he noted some of these symptoms in confirming bronchopneumonia, he did
not seem to have considered the patient's other manifestations in ruling out dengue fever or dengue
hemorrhagic fever.58 To our mind, Dr. Casumpang selectively appreciated some, and not all of the
symptoms; worse, he casually ignored the pieces of information that could have been material in
detecting dengue fever. This is evident from the testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990
Q: Now, when Dr. Casumpang visited your son for the first time at 5:30 p.m., what did he do, if any?
A: He examined my son by using stethoscope and after that, he confirmed to me that my son was
suffering from broncho pneumonia.
Q: After he confirmed that your son was suffering broncho pneumonia, what did you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my son has no
cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?
xxxx
A: And then, Dr. Casumpang answered "THAT'S THE USUAL BRONCHO PNEUMONIA, NO
COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your son's room?
A: He stayed for a minute or 2.
xxxx
Q: Q: When Dr. Casumpang arrived at 9:00 o'clock a.m. on April 23, what did you tell him, if any?
xxxx
A: I told Dr. Casumpang... After examining my son using stethoscope and nothing more, I
told Dr. Casumpang about the traces of blood in my son's sputum and I told him what is
all about and he has throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of looking at the throat of my
son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all these complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my son was almost moving
because of rapid breathing and he is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang when you told him that your son
is experiencing a rapid breathing?
A: No action. He just asked me if my son has an asthma but I said none.
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
A: More or less two (2) minutes then I followed him up to the door and I repeated about
the fever of my son.
Q: What did he tell you, if any, regarding that information you gave him that your son had
a fever?
A: He said, that is broncho pneumonia, It's only being active now. [ Emphasis supplied]
We also find it strange why Dr. Casumpang did not even bother to check Edmer's throat despite knowing
that as early as 9:00 in the morning of April 23, 1988, Edmer had blood streaks in his sputum. Neither
did Dr. Casumpang order confirmatory tests to confirm the source of bleeding. The Physician's Progress
Notes59 stated: "Blood streaks on phlegm can be due to bronchial irritation or congestion" which clearly
showed that Dr. Casumpang merely assumed, without confirmatory physical examination, that
bronchopneumonia caused the bleeding.

Dr. Jaudian likewise opined that Dr. Casumpang's medical examination was not comprehensive enough to
reasonably lead to a correct diagnosis.60 Dr. Casumpang only used a stethoscope in coming up with the
diagnosis that Edmer was suffering from bronchopneumonia; he never confirmed this finding with the
use of a bronchoscope. Furthermore, Dr. Casumpang based his diagnosis largely on the chest x-ray result
that is generally inconclusive.61

Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after Edmer's third episode of
bleeding) that Dr. Casumpang ordered the conduct of hematocrit, hemoglobin, blood typing, blood
transfusion and tourniquet tests. These tests came too late, as proven by: (1) the blood test results that
came at about 6:00 in the evening, confirming that Edmer's illness had developed to "Dengue
Hemorrhagic Fever" and (2) Dr. Jaudian's testimony that "dengue fever could have been detected earlier
than 7:30 in the evening of April 23, 1988 because the symptoms were already evident ."62

In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit, the Court ruled that
the petitioner doctors were negligent because they failed to immediately order tests to confirm the
patient's illness. Despite the doctors' suspicion that the patient could be suffering from diabetes, the
former still proceeded to the D&C operation. In that case, expert testimony showed that tests should
have been ordered immediately on admission to the hospital in view of the symptoms presented. The
Court held:
When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very
least, alert the physician of the possibility that the patient may be afflicted with the suspected disease.
The Court also ruled that reasonable prudence would have shown that diabetes and its complications
were foreseeable harm. However, the petitioner doctors failed to take this into consideration and
proceeded with the D&C operation. Thus, the Court ruled that they failed to comply with their duty to
observe the standard of care to be given to hyperglycemic/diabetic patients.

Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise reasonable prudence in
ascertaining the extent of the patient's injuries, this Court declared that:
In failing to perform an extensive medical examination to determine the extent of Roy Jr.'s
injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the medical
profession. Assuming for the sake of argument that they did not have the capacity to make such
thorough evaluation at that stage, they should have referred the patient to another doctor with sufficient
training and experience instead of assuring him and his mother that everything was all right. [ Emphasis
supplied]
Even assuming that Edmer's symptoms completely coincided with the diagnosis of bronchopneumonia (so
that this diagnosis could not be considered "wrong"), we still find Dr. Casumpang guilty of negligence.

First, we emphasize that we do not decide the correctness of a doctor's diagnosis, or the
accuracy of the medical findings and treatment. Our duty in medical malpractice cases is to decide
- based on the evidence adduced and expert opinion presented - whether a breach of duty took place.

Second, we clarify that a wrong diagnosis is not by itself medical malpractice.65 Physicians are
generally not liable for damages resulting from a bona fide error of judgment. Nonetheless, when the
physician's erroneous diagnosis was the result of negligent conduct ( e.g., neglect of medical history,
failure to order the appropriate tests, failure to recognize symptoms), it becomes an evidence of medical
malpractice.

Third, we also note that medicine is not an exact science; 66 and doctors, or even specialists, are not
expected to give a 100% accurate diagnosis in treating patients who come to their clinic for
consultations. Error is possible as the exercise of judgment is called for in considering and reading the
exhibited symptoms, the results of tests, and in arriving at definitive conclusions. But in doing all these,
the doctor must have acted according to acceptable medical practice standards.

In the present case, evidence on record established that in confirming the diagnosis of
bronchopneumonia, Dr. Casumpang selectively appreciated some and not all of the symptoms presented,
and failed to promptly conduct the appropriate tests to confirm his findings. In sum, Dr. Casumpang
failed to timely detect dengue fever, which failure, especially when reasonable prudence would have
shown that indications of dengue were evident and/or foreseeable, constitutes negligence.

a. Negligence in the Treatment and Management of Dengue

Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to
promptly undertake the proper medical management needed for this disease.

As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited the classic
symptoms of dengue fever should have been: oxygen inhalation, use of analgesic, and infusion of fluids
or dextrose;67 and once the patient had twice vomited fresh blood, the doctor should have ordered: blood
transfusion, monitoring of the patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there
is difficulty in breathing.68

Dr. Casumpang failed to measure up to these standards. The evidence strongly suggests that he ordered
a transfusion of platelet concentrate instead of blood transfusion. The tourniquet test was only conducted
after Edmer's second episode of bleeding, and the medical management (as reflected in the records) did
not include antibiotic therapy and complete physical examination.

Dr. Casumpang's testimony states:

Q: Now, after entertaining - After considering that the patient Edmer Cortero was already suffering
from dengue hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac rate and respiratory rate
of the patient.
Q: Now, was your instructions carried on?
A: Yes, sir.
Q: What was the blood pressure of the patient?
A: During those times, the blood pressure of the patient was even normal during those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since admission had difficulty in
breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [ sic] the patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were ________; his blood pressure was normal so
we continued with the supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988,1 stayed in the hospital and I was informed by the pediatric
resident on duty at around 11:15 in the evening that the blood pressure of the patient went down
to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we changed the IV fluid from the
present fluid which was D5 0.3 sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary to resume the volume
and to bring back the blood pressure, to increase the blood pressure. [Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr. Ellewelyn Pasion ( Dr.
Pasion), Personnel Officer and Medical Director of SJDH, respectively as well as the testimonies of Dr.
Livelo and Dr. Reyes (the radiologist who read Edmer's chest x-ray result), these witnesses failed to
dispute the standard of action that Dr. Jaudian established in his expert opinion. We cannot consider
them expert witnesses either for the sole reason that they did not testify on the standard of care in
dengue cases.69

On the whole, after examining the totality of the adduced evidence, we find that the lower courts
correctly did not rely on Dr. Casumpang's claim that he exercised prudence and due diligence in handling
Edmer's case. Aside from being self-serving, his claim is not supported by competent evidence. As the
lower courts did, we rely on the uncontroverted fact that he failed, as a medical professional, to observe
the most prudent medical procedure under the circumstances in diagnosing and treating Edmer.

Dr. Miranda is Not Liable for Negligence

In considering the case of Dr. Miranda, the junior resident physician who was on-duty at the time of
Edmer's confinement, we see the need to draw distinctions between the responsibilities and
corresponding liability of Dr. Casumpang, as the attending physician, and that of Dr. Miranda.
In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine licensed
to practice in the Philippines and who would like to pursue a particular specialty. 70 They are usually the
front line doctors responsible for the first contact with the patient. During the scope of the residency
program,71 resident physicians (or "residents")72 function under the supervision of attending
physicians73or of the hospital's teaching staff. Under this arrangement, residents operate merely as
subordinates who usually defer to the attending physician on the decision to be made and on the action
to be taken.

The attending physician, on the other hand, is primarily responsible for managing the resident's exercise
of duties. While attending and resident physicians share the collective responsibility to deliver safe and
appropriate care to the patients,74 it is the attending physician who assumes the principal responsibility of
patient care.75 Because he/she exercises a supervisory role over the resident, and is ultimately
responsible for the diagnosis and treatment of the patient, the standards applicable to and the liability of
the resident for medical malpractice is theoretically less than that of the attending physician. These
relative burdens and distinctions, however, do not translate to immunity from the legal duty of care for
residents,76 or from the responsibility arising from their own negligent act.

In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of care in medical
malpractice cases involving first-year residents was that of a reasonably prudent physician and not that of
interns. According to Jenkins:
It is clear that the standard of care required of physicians is not an individualized one but of physicians in
general in the community. In order to establish medical malpractice, it must be shown by a
preponderance of the evidence that a physician did some particular thing or things that a physician or
surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or
circumstances, or that he failed or omitted to do some particular thing or things that a physician or
surgeon of ordinary skill, care and diligence would have done under like or similar conditions or
circumstances, and that the inquiry complained of was the direct result of such doing or failing to do such
thing or things.

We note that the standard of instruction given by the court was indeed a proper one. It clearly
informed the jury that the medical care required is that of reasonably careful physicians or
hospital emergency room operators, not of interns or residents. [Emphasis supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns and first-year
residents are "practitioners of medicine required to exercise the same standard of care applicable to
physicians with unlimited licenses to practice ." The Indiana Court held that although a first-year resident
practices under a temporary medical permit, he/she impliedly contracts that he/she has the reasonable
and ordinary qualifications of her profession and that he/she will exercise reasonable skill, diligence, and
care in treating the patient.

We find that Dr. Miranda was not independently negligent. Although she had greater patient
exposure, and was' subject to the same standard of care applicable to attending physicians, we believe
that a finding of negligence should also depend on several competing factors, among them, her authority
to make her own diagnosis, the degree of supervision of the attending physician over her, and the shared
responsibility between her and the attending physicians.

In this case, before Dr. Miranda attended to Edmer, both Dr. Livelo and Dr. Casumpang had diagnosed
Edmer with bronchopneumonia. In her testimony, Dr. Miranda admitted that she had been briefed about
Edmer's condition, his medical history, and initial diagnosis; 79 and based on these pieces of information,
she confirmed the, finding of bronchopneumonia.

Dr. Miranda likewise duly reported to Dr. Casumpang, who admitted receiving updates regarding Edmer's
condition.80 There is also evidence supporting Dr. Miranda's claim that she extended diligent care to
Edmer. In fact, when she suspected - during Edmer's second episode of bleeding - that Edmer could be
suffering from dengue fever, she wasted no time in conducting the necessary tests, and promptly notified
Dr. Casumpang about the incident. Indubitably, her medical assistance led to the finding of dengue fever.

We note however, that during Edmer's second episode of bleeding,81 Dr. Miranda failed to immediately
examine and note the cause of the blood specimen. Like Dr. Casumpang, she merely assumed that the
blood in Edmer's phlegm was caused by bronchopneumonia. Her testimony states:
TSN, June 8, 1993:
Q: Let us get this clear, you said that the father told you the patient cocked [ sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen?
A: No, sir, I did not because according to the father he wash [ sic] his hands.
 xxxx
Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the lung
alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to you by the father that Edmer Cortejo
had coughed out blood, what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a product of broncho
pneumonia.
xxxx
Q: So what examination did you specifically conduct to see that there was no internal bleeding?
A: At that time I did not do anything to determine the cause of coughing of the blood
because I presumed that it was a mucous (sic) produced by broncho pneumonia, And
besides the patient did not even show any signs of any other illness at that time. [83
Based on her statements we find that Dr. Miranda was not entirely faultless. Nevertheless, her failure
to discern the import of Edmer's second bleeding does not necessarily amount to
negligence as the respondent himself admitted that Dr. Miranda failed to examine the blood specimen
because he washed it away. In addition, considering the diagnosis previously made by two doctors, and
the uncontroverted fact that the burden of final diagnosis pertains to the attending physician ( in this
case, Dr. Casumpang), we believe that Dr. Miranda's error was merely an honest mistake of judgment
influenced in no small measure by her status in the hospital hierarchy; hence, she should not be held
liable for medical negligence.

Dr. Jaudian 's Professional Competence and Credibility

One of the critical issues the petitioners raised in the proceedings before the lower court and before this
Court was Dr. Jaudian's competence and credibility as an expert witness. The petitioners tried to discredit
his expert testimony on the ground that he lacked the proper training and fellowship status in pediatrics.

Criteria in Qualifying as an Expert Witness

The competence of an expert witness is a matter for the trial court to decide upon in the exercise of its
discretion. The test of qualification is necessarily a relative one, depending upon the subject matter of the
investigation, and the fitness of the expert witness. 84 In our jurisdiction, the criterion remains to be the
expert witness' special knowledge experience and practical training that qualify him/her to
explain highly technical medical matters to the Court.
�
In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a pulmonologist, not qualified
to testify on the field of anesthesiology. Similarly, in Cereno v. Court of Appeals,86 a 2012 case involving
medical negligence, the Court excluded the testimony of an expert witness whose specialty was
anesthesiology, and concluded that an anesthesiologist cannot be considered an expert in the field of
surgery or even in surgical practices and diagnosis.

Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician but a
practicing physician who specializes in pathology.87 He likewise does not possess any formal residency
training in pediatrics. Nonetheless, both the lower courts found his knowledge acquired through study
and practical experience sufficient to advance an expert opinion on dengue-related cases.

We agree with the lower courts.

A close scrutiny of Ramos and Cereno reveals that the Court primarily based the witnesses'
disqualification to testify as an expert on their incapacity to shed light on the standard of care that must
be observed by the defendant-physicians. That the expert witnesses' specialties do not match the
physicians' practice area only constituted, at most, one of the considerations that should not be taken out
of context. After all, the sole function of a medical expert witness, regardless of his/her specialty, is to
afford assistance to the courts on medical matters, and to explain the medical facts in issue.

Furthermore, there was no reasonable indication in Ramos and Cereno that the expert witnesses possess
a sufficient familiarity with the standard of care applicable to the physicians' specialties.

US jurisprudence on medical malpractice demonstrated the trial courts' wide latitude of discretion in
allowing a specialist from another field to testify against a defendant specialist.

In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony regarding a
gynecologist's standard of pre-surgical care. In that case, the court held that since negligence was not
predicated on the gynecologist's negligent performance of the operation, but primarily on the claim that
the pre-operative histories and physicals were inadequate, the neurosurgeon was competent to testify as
an expert.

Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a neurologist in a medical
malpractice action. The court considered that the orthopedic surgeon's opinion on the "immediate need
for decompression" need not come from a specialist in neurosurgery. The court held that:
It is well established that "the testimony of a qualified medical doctor cannot be excluded simply because
he is not a specialist x x x." The matter of "x x x training and specialization of the witness goes to the
weight rather than admissibility x x x."

xxxx

It did not appear to the court that a medical doctor had to be a specialist in neurosurgery to express the
opinions permitted to be expressed by plaintiffs' doctors, e.g., the immediate need for a decompression
in the light of certain neurological deficits in a post-laminectomy patient. As stated above, there was no
issue as to the proper execution of the neurosurgery. The medical testimony supported plaintiffs' theory
of negligence and causation. (Citations omitted)
In another case,90 the court declared that it is the specialist's knowledge of the requisite subject
matter, rather than his/her specialty that determines his/her qualification to testify.

Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert witness:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the required
professional knowledge, learning and skill of the subject under inquiry sufficient to qualify
him to speak with authority on the subject; and (2) is familiar with the standard required of
a physician under similar circumstances; where a witness has disclosed sufficient knowledge of the
subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to
the weight of the evidence than to its admissibility.

xxxx

Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits
knowledge of the subject. Where a duly licensed and practicing physician has gained
knowledge of the standard of care applicable to a specialty in which he is not directly
engaged but as to which he has an opinion based on education, experience, observation, or
association wit that specialty, his opinion is competent. (Emphasis supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness' familiarity, and not the
classification by title or specialty, which should control issues regarding the expert witness' qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a specialist in a particular
branch within a profession will not be required." Most courts allow a doctor to testify if they are satisfied
of his familiarity with the standards of a specialty, though he may not practice the specialty himself. One
court explained that "it is the scope of the witness' knowledge and not the artificial classification by title
that should govern the threshold question of admissibility. (Citations omitted)
Application to the Present Case

In the case and the facts before us, we find that Dr. Jaudian is competent to testify on the standard of
care in dengue fever cases.

Although he specializes in pathology, it was established during trial that he had attended not less than 30
seminars held by the Pediatric Society, had exposure in pediatrics, had been practicing medicine for 16
years, and had handled not less than 50 dengue related cases.

As a licensed medical practitioner specializing in pathology, who had practical and relevant exposure in
pediatrics and dengue related cases, we are convinced that Dr. Jaudian demonstrated sufficient
familiarity with the standard of care to be applied in dengue fever cases. Furthermore, we agree that he
possesses knowledge and experience sufficient to qualify him to speak with authority on the subject.

The Causation Between Dr. Casumpang's Negligent Act/Omission, and the Patient's
Resulting Death was Adequately Proven

Dr. Jaudian's testimony strongly suggests that due to Dr. Casumpang's failure to timely diagnose Edmer
with dengue, the latter was not immediately given the proper treatment. In fact, even after Dr.
Casumpang had discovered Edmer's real illness, he still failed to promptly perform the standard medical
procedure. We agree with these findings.
As the respondent had pointed out, dengue fever, if left untreated, could be a life threatening disease. As
in any fatal diseases, it requires immediate medical attention. 93 With the correct and timely diagnosis,
coupled with the proper medical management, dengue fever is not a life-threatening disease and could
easily be cured.94

Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate of dengue fever
should fall to less than 2%.� Hence, the survival of the patient is directly related to early and proper
management of the illness.95

To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever despite the presence of
its characteristic symptoms; and as a consequence of the delayed diagnosis, he also failed to promptly
manage Edmer's illness. Had he immediately conducted confirmatory tests, ( i.e., tourniquet tests and
series of blood tests) and promptly administered the proper care and management needed for dengue
fever, the risk of complications or even death, could have been substantially reduced.

Furthermore, medical literature on dengue shows that early diagnosis and management of dengue is
critical in reducing the risk of complications and avoiding further spread of the virus.96 That Edmer later
died of "Hypovolemic Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever Stage IV," a severe and
fatal form of dengue fever, established the causal link between Dr. Casumpang's negligence and the
injury.

Based on these considerations, we rule that the respondent successfully proved the element of causation.

Liability of SJDH

We now discuss the liability of the hospital.

The respondent submits that SJDH should not only be held vicariously liable for the petitioning doctors'
negligence but also for its own negligence. He claims that SJDH fell short of its duty of providing its
patients with the necessary facilities and equipment as shown by the following circumstances:
(a) SJDH was not equipped with proper paging system;
(b) the number of its doctors is not proportionate to the number of patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmer's oxygen was removed, the medical staff did not immediately provide him with
portable oxygen;
(e) when Edmer was about to be transferred to another hospital, SJDH's was not ready and had no
driver; and
(f) despite Edmer's critical condition, there was no doctor attending to him from 5:30 p.m. of April 22,
to 9:00 a.m. of April 23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning doctors are not its employees
but are mere consultants and independent contractors.

We affirm the hospital's liability not on the basis of Article 2180 of the Civil Code, but on the basis of the
doctrine of apparent authority or agency by estoppel.

There is No Employer-Employee Relationship Between SJDH and the Petitioning Doctors

In determining whether an employer-employee relationship exists between the parties, the following
elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the
power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to be
used in reaching such an end.97

Control, which is the most crucial among the elements, is not present in this case.

Based on the records, no evidence exists showing that SJDH exercised any degree of control over the
means, methods of procedure and manner by which the petitioning doctors conducted and performed
their medical profession. SJDH did not control their diagnosis and treatment. Likewise, no evidence was
presented to show that SJDH monitored, supervised, or directed the petitioning doctors in the treatment
and management of Edmer's case. In these lights, the petitioning doctors were not employees of SJDH,
but were mere independent contractors.

SJDH is Solidarity Liable Based on The Principle of Agency or Doctrine of Apparent Authority

Despite the absence of employer-employee relationship between SJDH and the petitioning doctors, SJDH
is not free from liability.98

As a rule, hospitals are not liable for the negligence of its independent contractors. However, it may be
found liable if the physician or independent contractor acts as an ostensible agent of the hospital. This
exception is also known as the "doctrine of apparent authority."99

The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the hospitals' immunity to vicarious
liability of independent contractor physicians. In that case, the Illinois Supreme Court held that under the
doctrine of apparent authority, hospitals could be found vicariously liable for the negligence of an
independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a hospital can be held vicariously liable
for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is
an independent contractor, unless the patient knows, or should have known, that the physician is an
independent contractor. The elements of the action have been set out as follows:
For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the
hospital, or its agent, acted in a manner that would lead a reasonable person to conclude
that the individual who was alleged to be negligent was an employee or agent of the
hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff
must also prove that the hospital had knowledge of and acquiesced in them; and (3) the
plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with
ordinary care and prudence. (Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court, through
the ponenciaof Associate Justice Antonio T. Carpio, discussed the two factors in determining hospital
liability as follows:
The first factor focuses on the hospital's manifestations and is sometimes described as an inquiry whether
the hospital acted in a manner which would lead a reasonable person to conclude that the individual who
was alleged to be negligent was an employee or agent of the hospital. In this regard, the hospital need
not make express representations to the patient that the treating physician is an employee of the
hospital; rather a representation may be general and implied.

xxxx

The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on
whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with
ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or an independent
contractor) providing care at the hospital if the plaintiff can prove these two factors: first, the hospital's
manifestations; and second, the patient's reliance.

a. Hospital's manifestations

It involves an inquiry on whether the hospital acted in a manner that would lead a reasonable person to
conclude that the individual alleged to be negligent was an employee or agent of the hospital. As pointed
out in Nogales, the hospital need not make express representations to the patient that the physician or
independent contractor is an employee of the hospital; representation may be general and implied. 102

In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by the hospital or its
agent are sufficient to lead a reasonable person to conclude that the individual was an agent of the
hospital." In ruling that the hospital's manifestations can be proven without the express representation by
the hospital, the court relied on several cases from other jurisdictions, and held that:
(1) the hospital, by providing emergency room care and by failing to advise patients that they were
being treated by the hospital's agent and not its employee, has created the appearance of agency;
and
(2) patients entering the hospital through the emergency room, could properly assume that the treating
doctors and staff of the hospital were acting on its behalf.
In this case, the court considered the act of the hospital of holding itself out as provider of complete
medical care, and considered the hospital to have impliedly created the appearance of authority.

b. Patient's reliance

It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the hospital or
its agent, consistent with ordinary care and prudence.104

In Pamperin, the court held that the important consideration in determining the patient's reliance
is: whether the plaintiff is seeking care from the hospital itself or whether the plaintiff is looking to the
hospital merely as a place for his/her personal physician to provide medical care .105

Thus, this requirement is deemed satisfied if the plaintiff can prove that he/she relied upon the hospital
to provide care and treatment, rather than upon a specific physician. In this case, we shall limit the
determination of the hospital's apparent authority to Dr. Casumpang, in view of our finding that Dr.
Miranda is not liable for negligence.

SJDH Clothed Dr. Casumpang With Apparent Authority

SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading the respondent to
believe that he is an employee or agent of the hospital.

Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang, to care and treat
his son Edmer. His testimony during trial showed that he and his wife did not know any doctors at
SJDH; they also did not know that Dr. Casumpang was an independent contractor. They
brought their son to SJDH for diagnosis because of their family doctor's referral. The referral did not
specifically point to Dr. Casumpang or even to Dr. Miranda, but to SJDH.

Significantly, the respondent had relied on SJDH's representation of Dr. Casumpang's authority. To recall,
when Mrs. Cortejo presented her Fortune Care card, she was initially referred to the Fortune Care
coordinator, who was then out of town. She was thereafter referred to Dr. Casumpang, who is also
accredited with Fortune Care. In both instances, SJDH through its agent failed to advise Mrs. Cortejo that
Dr. Casumpang is an independent contractor.

Mrs. Cortejo accepted Dr. Casumpang's services on the reasonable belief that such were being provided
by SJDH or its employees, agents, or servants. By referring Dr. Casumpang to care and treat for
Edmer, SJDH impliedly held out Dr. Casumpang, not only as an accredited member of
Fortune Care, but also as a member of its medical staff. SJDH cannot now disclaim liability since
there is no showing that Mrs. Cortejo or the respondent knew, or should have known, that Dr.
Casumpang is only an independent contractor of the hospital. In this case, estoppel has already set in.

We also stress that Mrs. Cortejo's use of health care plan ( Fortune Care) did not affect SJDH's liability.
The only effect of the availment of her Fortune Care card benefits is that her choice of physician is limited
only to physicians who are accredited with Fortune Care. Thus, her use of health care plan in this case
only limited the choice of doctors (or coverage of services, amount etc.) and not the liability of doctors or
the hospital.

WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions. The Court
finds Dr. Noel Casumpang and San Juan de Dios Hospital solidarity liable for negligent medical practice.
We SET ASIDE the finding of liability as to Dr. Ruby Sanga-Miranda. The amounts of P45,000.00 as
actual damages and P500,000.00 as moral damages should each earn legal interest at the rate of six
percent (6%) per annum computed from the date of the judgment of the trial court. The
Court AFFIRMSthe rest of the Decision dated October 29, 2004 and the Resolution dated January 12,
2006 in CA-G.R. CV No. 56400.

SO ORDERED.